66 Ark. 161 | Ark. | 1899
(after stating the facts.) The first objection made to the deed of assignment, to the effect that it was never filed, may be answered by reference to the statute (Acts of 1895, page 162), which does not require the deed to be filed.
The second, to the effect that the assignee did not take, and could not have taken, possession of the property upon the execution and delivery of the deed of assignment, is answered by the real facts in the case. At the time of the execution of the assignment the property was in possession of the sheriff by virture of the levy of an execution in his hands, in favor of W. N. Brown, Jr. for Brown, Smith & Co.; but the sheriff, by consent of the plaintiff in execution-, put the assignee in possession as his (the sheriff’s) agent, Brown agreeing not to hold the sheriff responsible for any loss occasioned thereby, and, being in possession in this way, the assignee took the inventory .required by statue, and cared for and preserved the property until the same was disposed of by him under directions of the chancellor, as recited in the statement of facts.
The third ground, to the effect that the assignee failed to file his bond, as required by statute, within ten days from the execution of the assignment, if true as a matter of fact (which fact we need not here discuss), did not invalidate the assignment. In Lowenstein v. Finney, 54 Ark. 124, this court said: “When the deed of assignment was signed, acknowledged and delivered by Finney to Little, the title vested in Little, and the statutory requirement that Little should file a bond and inventory before he could control the property was a condition subsequent, which could have nothing to do with the vesting of the title under the deed. . They were requirements with which Finney had nothing to do. The consent or objection of Finney could in no wise affect the title thus vested.” To the same effect are Ex parte Conway, 4 Ark. 302; Clayton v. Johnson, 36 Ark. 406; Thatcher v. Franklin, 37 Ark. 54.
It is, indeed, well settled that nothing that either the assignor or the assignee could do or fail to do, after the execution of the assignment and the delivery thereof, can effect the validity of the assignment, for rights of others have then become vested. • Besides, should an assignee in any case fail to qualify or neglect or refuse to perform his duty under the assignment, the court, under the familiar rule, would appoint another to act in his place, and administer under the assignment. Ewing v. Walker, 60 Ark. 503; Ex parte Conway, 4 Ark. 302.
. Nothing need be said as to the fourth objection to the deed of assignment, more than has been said as to the third objection, if, indeed, it is not untenable for other reasons.
The fifth objection is to the effect that the assignment is not for the benefit of all the assignor’s creditors, and that it reserves to the grantor the residue of the property, or its proceeds, after payment of creditors mentioned therein. There is no reservation of the residue to the grantor to be found in the language of the deed before us. The deed directs that the judgment and execution of Brown, Smith & Co. be first satisfied; then payment be made to the defendants herein by name, and then to plaintiffs and others named in the deed; and, inferentially, any surplus remainiug would go to any other creditors not named, by omission or otherwise, or as the law directs. The facts in this case show that there were no other creditors than those named in the deed, and one of the strongest evidences of this fact is that the plaintiffs herein, who are among the creditors named, are suing because the proceeds of the property was not sufficient to satisfy these claims, if appropriated under the assignment.
We do not see that any of the objections to the assignment are valid, and the decree declaring the same fraudulent and void is reversed, and the cause is remanded, with directions to execute the assignment by a proper distribution of the fund thereunder, and further to make the allowance to the assignee of the amount of expenditure claimed by him and disallowed as if the same had been expended under a valid assignment, the court here assuming -that the disallowance followed the decree annulling the assignment, and for that reason only.