20 Utah 419 | Utah | 1899
The allegations in this complaint are substantially the same as are contained in the case of Snyder, Assignee v. Murdock, et al., heretofore decided at this term, except that in this case 22 shares of stock in the Wasatch Irr. Company, a corporation organized and existing under the laws of this state, standing in the name of Heber Rasband,
It also appears that certificates for said stock had not been issued by the company, but that the same remained in the custody of the water company, and was transferable only on the books of the company; that plaintiff believed until defendant Murdock levied his attachment on said stock that said stock was appurtenant to the land, and subject to an action then pending between plaintiff and part of the defendants, and therefore no immediate steps were taken to reduce the same to possession. Defendant Murdock levied upon, took possession, and sold the stock in Wasatch county. The complaint alleges demand, refusal to deliver the stock, and right of possession in plaintiff, as assignee.
The defendants entered their several demurrers to the complaint, which were sustained, and the complaint dismissed. This appeal is taken from the judgment.
Under Sec. 1281, R. S. 1898, the title to water rights appurtenant to land, pass by a conveyance of the land, unless expressly reserved in the deed, or such water rights may be treated as personal property and separately conveyed. Bear Lake v. Ogden City, 8 Utah, 494. By the provisions of Ch. 87, Sess. Laws, 1896, p. 304, Sec. 2380, stock is declared to be personal property which may be transferred by assignment in writing, and by delivery of the certificate.
The respondents contend that the water stock levied upon and sold by the judgment creditors, has never be.en taken into possession by the assignee, and was not included in the inventory attached to the assignment, and that such assignment was void under Section 2473-4 Rev. Stat. 1898.
An assignee for the benefit of creditors does not occupy the same position towards the personal property assigned to him as trustee for the benefit of creditors, as does a purchaser or attaching creditor of such property, with respect to the immediate delivery and change of possession of the same. Such assignee stands in the position of a trustee and holds the assigned estate for the benefit of all creditors of the assignor. In a general assignment the title to all real and personal property of the assignor, as we have seen under the facts stated in the previous case, immediately vests in the assignee whether mentioned in the schedule attached, to the assignment or not, and it is his duty to reduce it to possession and distribute the same to creditors as provided by the statute. To do this the assignee should have sufficient time in which to obtain such possession. The rule that a sale or assignment of chattels, unaccompanied by a change of possession, is fraudulent per sé, under Secs. 3473-4, Rev. Stat. 1898, as to execution creditors or subsequent purchasers of the vendor, does not necessarily apply to assignments for the benefit of creditors, but long delay in taking possession is a circumstance from which fraud may be inferred, but such inference may be explained and contradicted by proof.
The recording of the assignment and publishing- notice thereof in the county where the property is located and the assignors resided, is intended to give publicity to the act of assignment, and operates as constructive notice to all persons that an assignment has been made. In addition to this actual notice of the assignment was given the
The assignee, until the levy of the attachment, verily believed that the certificate of stock was appurtenant to the land belonging to the estate and passed with it to the assignee, and that such land with the. water right was subject to an action between plaintiff and some other parties, which action was then pending, and therefore no immediate steps were thought necessary to reduce the certificates of stock into his actual possession. We are unable to discover any fraud or intentional wrong doing on the part of the assignee. So far as appears, he acted in good faith.
On the authority of Snyder v. Murdock, et al., supra, we are of the opinion that the stock passed under the deed to the assignee, and that he was entitled to the possession thereof, as against the attaching creditors. Lowe v. Matson, 140 Ill. 108; Pitman v. Marquardt, 50 N. E. 894; Faxon v. Durrant, 9 Metc. 339; Meeker v. Felts, 23 Atl. Rep. 672; Church v. Branch, 120 Mo. 226; Billings v. Parsons, 17 Utah, 22; Sec. 2085, Rev. Stat. 1898.
We are of the opinion that the court erred in sustaining the demurrer, and in dismissing the complaint.
The case is reversed and remanded with instructions to the district court to grant a new trial, overrule the demurrer, set aside the judgment, and proceed to trial on the complaint in accordance with this opinion.
Appellant is entitled to costs.
