8 Colo. 467 | Colo. | 1885
In the month of September, A. D. 1882, P. S. & W. J. Hartzell, as partners, were engaged in the
Defendant in error, as the successor in trust to Rising, the assignee, brought his suit in replevin against the sheriff to recover possession of the property attached as aforesaid, and obtained judgment therefor. To reverse the latter judgment the cause is now pending in this court.
At the time of the foregoing transaction there was no state statute dealing exclusively with assignments for the benefit of creditors that affected the question which we deem decisive upon this review.
A number of the principles governing assignments of personal property, including those made for the benefit of creditors, are analogous to rules which control in the sale of such property. Among these, according to the authorities, is that relating to a delivery of the property assigned. In order to complete the transaction and pass the title to the assignee, it is held that there must be such a delivery to and acceptance by him as the nature of the personalty conveyed will reasonably admit of. Ward v. Morrison, 25 Vt. 593, citing Hall v. Parsons, 17 Vt. 271; Wilson v. Pearson, 20 Ill. 81. We have no hesitancy in adopting the rule that until this change of possession takes place, the title has not passed to the assignee, as against a bona fide creditor without notice of the assignment proceedings. It will be seen further on that we leave as an open question the rights of a creditor who is charged with such notice.
If, therefore, a creditor without notice levies an attachment or execution upon the property before the assignee has secured possession thereof, he thereby obtains a lien
It is true that the rule as to immediate delivery is relaxed by some of the authorities; that, in the absence of statute, it is said to be sufficient if such delivery follow the execution of the deed of assignment and acceptance of the trust as soon as practicable. But we take it that this rule must be understood as applying to those cases where, although there has been no change of possession, yet the attaching creditor has knowledge of the bona fide assignment proceedings which have already taken place.
Counsel for plaintiff in error also contends that this subject is governed by our statute of frauds. He is correct, if the provision relied on covers assignments for the benefit of creditors. Section 1523, Gen. Stat., being section 14 of the act,' provides that “every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing sold or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and this presumption shall be conclusive.” It thus appears that in this state, where the assignment is not accompanied by an “immediate delivery,” such fact, in and of itself, constitutes a conclusive presumption of fraud as to creditors of the assignor whose execution or attachment levy precedes the assignee’s possession. As stated by another court in construing a similar provision: “The statute admits of no explanation excusing the delivery.” Woods v. Bugbey, 29 Cal. 467. See, also, Godchaux v. Mulford, 26 Cal. 316. Interpreting this provision, with reference to sales,
We do not construe the foregoing section fully. We only consider the assignment feature thereof, if applicable, with reference to the facts disclosed in the case at bar; and it is therefore sufficient for us to say that, however the conclusion may be where the creditor has notice of the unfinished assignment proceedings, in cases like the one before us, where he procures his attachment levy without such notice, he obtains a lien which takes precedence over the title of the assignee.
But we are referred by counsel for defendant in error to section 1529 of the General Statutes, being section 20 of the act mentioned. It reads as follows: “ The question of fraudulent intent, in all cases arising under the provisions of this title, shall be deemed a question of fact, and not of law. * * * ” Counsel claim that by virtue of the latter provision, the fraud recognized in the former is made a question of fact. But, as we have already suggested, the language of section 14 renders the presumption of fraud, in the absence of a delivery, there being intervening rights, conclusive. Such presumption thereby becomes a presumption of law. Section 20 unquestionably refers to other provisions of the act, which pronounce certain transactions made with a fraudulent intent void; it does not in any manner affect or modify the conclusive presumption of law declared by section 14.
Taking this view of the law, it follows that we must. reverse the judgment; and such legal conclusion being decisive of this case, we deem it unnecessary to prolong the opinion by a discussion of the remaining questions presented. The judgment is reversed and the cause remanded.
Reversed.