Tait v. Carey & Fitzpatrick

3 Indian Terr. 765 | Ct. App. Ind. Terr. | 1899

Springer, C. J.

The issues raised by the interplea in this case were by agreement of counsel tried by the Court, and special findings of facts and the law were submitted. To these findings the appellants took exceptions. The first error assigned is on account of the finding of the Court which held that the deed in question was a partial and not a general assignment of the property of the firm of Carey and Fitzpatrick, and that the notes and accounts belonging to the firm, not being in the brick house mentioned in the deed at the time of the execution thereof, were not conveyed by it. The deed is substantially set forth in the statement of the case. The counsel for the appellanos contends that the words ‘ ‘ goods, ” ‘ ‘ fixtures and apparatus, ” and “together with, all and singular, the rights, members, and appurtenances thereto belonging’ ’ are broad enough, in the connection in which they are used, to cover the notes and accounts, and show that it was the intention to assign everything owned and used by the firm. In the agreed statement of facts upon which this case was tried it was conceded that there were notes and accounts due the firm of Carey & Fitzpatrick to the amount of about $20,000 00, and that one of the members of the firm had removed the books of the firm, together with all notes and accounts, out of the Indian Territory, for the purpose of preventing creditors from attaching them, and that the notes and accounts were not in the storehouse at the time of the execution of the deed of assignment This clearly indicates that the makers of the deed did not intend to convey the notes and accounts, and hence, if they were conveyed, the language used in the deed must clearly import a conveyance. But the language employed is not broad enough to convey the notes and accounts of the firm. It would be strained and unreasonable construction to hold that the makers of the deed contemplated their transfer to the assigeee. This was not, therefore, a general assignment. It was partial, and the withholdings of the notes and accounts did not invalidate the conveyance of such property as was embraced in the deed. The Court also found that the deed of assignment was not executed in pursuance of a scheme to defraud the creditors of Carey & Fitzpatrick, and that if such scheme Existed the receiver had no notice thereof. The case was tried by the Court upon an agreed statement of facts, which is printed in full in the record. Counsel for appellants contends that the facts thus admitted tend to show that the deed was executed in pursuance of a scheme to defraud the creditors of the assignor, or to the effect that, at the time of the execution thereof, there were notes and accounts to the amount' of $20,000 belonging to the firm of Carey & Fitzpatrick, which they had heretofore removed out of the Indian Territory for the purpose of defrauding creditors. If the deed had purported to convey the notes and accounts, and the assignors had withheld them from the assignee, the assignment would have been fraudulent and void. If, however, the assignment was partial, and all the goods assigned were placed in the possession of the assignee, as appears in this case, then the mere fact that, prior to the assignment, other assets of the firm had been taken out of the Indian Territory, to prevent them from being seized in attachment, would not invalidate the assignment of the property which was conveyed by the deed.

The third assignment of error is involved in the first and second, and need not be further considered. The fourth assignment of error is that the Court erred in holding that the filing of the inventory of the goods and bond of the assignee at Ardmore, instead of at Chickasha, was a sufficient compliance with the requirements of the statute. In support of his contention on this point, counsel for appellants cite Section 305 of Mansfield’s Digest, which is as follows: “ Sec. 305. In all cases in which any .person shall make an assignment of any property, whether real, personal, mixed or choses in action, for the payment of debts, before the assignee shall be entitled to take possession, sell or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising equity jurisdiction a full and complete inventory and description of such property, and also make and execute a bond to the state of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the clerk of said Court conditioned that such assignee shall execute the trust confided to him, sell the property to the best advantage and pay the proceeds thereof to the creditors mentioned in said assignment according to the terms thereof, and faithfully perform the duties according to law.’’ This statute requires the bond and inventory to be filed ‘ ‘ in the office of che Clerk of the Court exercising equity jurisdiction.’’ The Court held at Chickasha, counsel insist, was the Court indicated, as that Court undoubtedly had equity jurisdiction, and the case at bar was pending therein. But the section quoted must be construed in connection with all the other laws in force in the Indian Territory. There is but one Court in the Southern District of the Indian Territory. The judge, clerk, district attorney, and marshal are the same at all places where the Court is held Ardmore is the place where the Clerk resides and keeps the record of the deeds and mortgages for the whole district, which district, corresponds with a county in Arkansas. Sec. 5550 of Mansfield ’s Digest establishes the recorder’s office at the seat of justice, and Sec. 5558 requires the recorder, who is the clerk, to record in his office all instruments of writing concerning any lands and tenements or goods and chattels for record. Hence Ardmore was the proper place for recording the deed of assignment and the inventory of the property. A better practice, in the Indian Territory, would be to file copies at both places. We quite agree, however, with the finding of the trial judge to the effect that the filing at Ardmore, and the failure to file at Chickasha, cannot avail the appellants in this case. They procured the order of attachment to issue after the deed of assignment had been delivered, and seized the goods while the assignee was making the inventory. After' the seizure of the goods by attachment and after the completion of the inventory and the execution of the bond, the trial court, with the consent of all parties concerned, including the appellants, appointed the assignee receiver, who was required to execute a bond as such, which was to supercede and take the place of the assignee’s bond. The receiver sold the property, and now holds the proceeds subject to the order of the Court. These proceedings did away entirely with the necessity of filing the inventory and assignee’s bond. Counsel for appellants insists that the appointment of Pimm as receiver, who was the assignee of the property and the interpleader therefor in the case, was illegal and void, under Section 5290 of Mansfield’s Digest, which is as follows: “Sec. 5290. No party or attorney interested in an action shall be appointed receiver therein.” This section was not called to the attention of the trial Court (Judge Kilgore presiding at the time), and no exception was taken to the appointment of the assignee as receiver. On the contrary, all the parties consented to his appointment as receiver, including the appellants. The appointment ought not to have been made. But the assignee was appointed receiver, and he has wholly executed the trust confided to him. The property has been sold, and the proceeds are now subject to the order of the Court. No one’s rights have been prejudiced. What was done was by consent of all parties, and to the interest of all concerned. The maxim, ‘ ‘ Fieri non debet, sed factum valet,” applies. While an error was committed, a reversal will not cure it, and will not promote the interests of any of the parties concerned. The contention of counsel for appellants to the effect that the consent given by Mrs. Fitzpatrick to the making of the deed of assignment was . not given as a partner but as an individual, is untenable. It matters not in what capacity she gave her consent in this case, for the reason that she gave it in the only terms which were consistent with the truth as she understood it. The law does not require persons to prevaricate in order to avoid the technical objections of consel. There is no reversible error in the case, and the judgment of the Court below is therefore affirmed.

Clayton, J., concurs.