49 Neb. 459 | Neb. | 1896
On the 10th day of July, 1893, one J. M. Burke, residing in Fillmore county, Nebraska, made an assignment for the benefit of all his creditors to Charles E. Summers, the sheriff of said county. This assignment appears to have been executed in exact conformity to the statutes, except that it was not witnessed. A creditor of Burke’s caused an execution to be issued and placed in the hands of one Jerome H. Sager, a constable, who seized a part of the property in the possession of Summers as assignee. Summers replevied the property, and on the trial in the district court he had a verdict and judgment, to reverse which Sager prosecutes here a petition in error.
1. On the trial of the replevin action Summers offered in evidence the deed of assignment executed and delivered by Burke to him. To the introduction of this deed Summers objected on the ground that it was not witnessed. The objection was overruled and the deed read in evidence. This action of the district court is the first assignment of error argued here. The precise question is this: Is a deed of assignment made by an insolvent debtor absolutely void unless witnessed? So much of
“Section 1. That no voluntary assignment for the behe- ■ fit of creditors hereafter made shall be valid unless the same shall be made in conformity to the terms of this act.
“Sec. 2. Every such assignment shall be of all the property * * * of the assignor, * * * except so much thereof as may be exempt from * * * execution. * * *
“Sec. 3. Real estate so assigned shall be described in the deed of assignment in such manner as would be requisite in an ordinary deed of conveyance thereof, and real estate claimed to be exempt shall be expressly excepted by a like description.”
“Sec. 5. In every such assignment the sheriff and his successor in office of the county in which the assignor resides * * * shall be named as assignee.
“Sec. 6. Such assignment shall be in writing and shall be executed and acknowledged ¿n the manner in which a conveyance of real estate is or shall be required to be executed and acknowledged in order to entitle the same to be recorded,” etc.
It is to bé observed that section 1 quoted above declares that no assignment for the benefit of creditors shall be valid unless the same shall be made in conformity to the terms of.this act. The word “valid” means having force, of binding force; legally sufficient or efficacious; authorized by law. (Anderson’s Law Dictionary.) The section, then, is to be construed as if it read: “All voluntary assignments for the benefit of creditors shall be void unless they shall be made in conformity to the terms of this act.” The word “made” in the act also requires construction. “To make” is to produce, to create, to execute. (Anderson’s Law Dictionary.) The word “made,” then, in the section should be construed the same as “executed,” and a fair construction of the entire section would read as follows: “Every voluntary assignment for the benefit of creditors hereafter made shall be void unless the same shall be executed in conformity to the terms of this, act.”
Our statute relating to assignments for the benefit of creditors was construed by the United States circuit court of appeals in Summers v. White, 71 Fed. Rep., 106. The validity of the deed of assignment involved in that case was the one involved here, and the property involved was part of the property sought to be conveyed by the deed of assignment under consideration. The court said: “In view of the mandatory provision found in the assignment law, that assignments shall be executed in the manner that a conveyance of real estate is required to be executed to entitle it to be recorded, and in view of the positive provision found in the act that no assignment shall be valid unless made in conformity to the terms of the act,
2. But it is said in support of the judgment that an ordinary deed of real estate, or a bill of sale of personal property, actually signed by the grantor and delivered to the grantee, is a good conveyance of the property as between the parties though such conveyance is neither witnessed nor acknowledged; and it is insisted that a deed of assignment made by an insolvent debtor for the benefit of his creditors would therefore also be good as between the parties and those having actual notice thereof. It is true that an ordinary conveyance of real estate, though neither witnessed nor acknowledged, if duly signed, by
3. Another argument in support of the judgment is that Summers, the assignee, was in possession of the property in question, and that Sager, the constable, when he seized it on execution actually knew that Summers claimed the property as the assignee of Burke, and, therefore, Sager is in no position to assail the insufficiency of the deed of assignment. This is but a different statement of the ar
Reversed and dismissed.
The conclusion adopted in the opinion filed herein is the proper one, irrespective of the punctuation of section 6, chapter 6, Compiled Statutes. The motion for a rehearing is accordingly denied.
Order made December 16, 1896, on motion for rehearing.