46 Minn. 138 | Minn. | 1891
On the 26th of February, 1889, the defendant, the sheriff of Ramsey county, holding an attachment against the property of one P. Sprague Haskell, levied upon the property of the plaintiff’s
It is urged by the appellant in defence that the assignment to the plaintiff was invalid for various reasons, some of which go to the validity of the assignment on its face, the others relating to the absence of proof of the statutory conditions authorizing the making of the assignment. We think that this was on its face a valid assignment under the insolvent law of 1881. Even if it be true that the assignor had become a non-resident of the state, the assignment would still be legal. In re Howes, 38 Minn. 403, (38 N. W. Rep. 104.) It was properly filed in the office of the clerk of the district court in the county “wherein the business in reference to which the same is made has been principally carried on.” See Laws 1881, c. 148, § 1, and Laws 1876, c. 44, § 1, (Gen. St. 1878, c. 41, § 23.) The deed of assignment recites as. facts such conditions as would justify an assignment under the insolvent law above cited, and it is apparent from these recitals and from the further terms of the deed that it was intended to be made in accordance with that statute. The recital of the statutory conditions point to this conclusion. The provision as to creditors filing releases “as by law provided” can have reference to no other law. It is to be read and construed in connection with that law in accordance with which, under the direction of the court, it was intended to be, and is to be, administered
It is said that proof was not made of the facts which would justify the making of an assignment under the insolvent law. The defendant should not now prevail on this point, for the reason that he may fairly be said to have waived any such objection when, upon the assignment being offered in evidence, he made objection to it solely on the ground that it “was executed out of this state'.
It is claimed that the general charge of the court relating to . the validity and effect of the mortgage above referred to was erroneous. Even if this were true, it could not avail the appellant, for no exceptions were taken. In this connection, however, we will say that the case justified the court in instructing the jury upon this subject. Even though the pleadings did not make an issue as to the validity of the mortgage, it was tried as an. issue in the case, evidence being received going to show that the parties to the mortgage contemplated that the mortgagor should sell the property without accounting for the proceeds to the mortgagee. See Horton v. Williams, 21 Minn. 187.
Judgment affirmed.
Mitchell, J., took no part in this decision.