Adams v. Hartzell

• Decision Date: 19 January 1909
• Citation: Adams v. Hartzell, 18 N. D. 221, 119 N.W. 635 (N.D. 1909)
• Court: North Dakota Supreme Court

119 N.W. 635

18 N.D. 221

SIDNEY D. ADAMS v. W. J. HARTZELL AND SARGENT COUNTY. W. J. HARTZELL, DEFENDANT AND APPELLANT

Supreme Court of North Dakota

January 19, 1909

Appeal from District Court, Sargent county; Allen, J.

Action bye Sidney D. Adams against W. J. Hartzell. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Judgment of the district court reversed, and judgment entered quieting the title to the land described in the appellant, as against all claims of the respondent.

Chas E Wolfe, J. E. Bishop, and C. D. Austin, for appellants.

Statutory assignment for benefit of creditors does not pass title to realty in another state. Security Trust Co. v. Dodd, 173 U.S. 624; Segnitz v. Trust Co., 83 N.W. 327; Wells v. Walsh, 57 N.W. 969; McClure v Campbell, 37 N.W. 343; Hutchinson v. Peshine, 16 N.J.Eq. 170; Lessee of Roderick's Heirs, 2 Hammond 380; Osborn v. Adams. 18 Pick, 247.

Nor passes title to land not inventoried. Bock v. Perkins, 139 U.S. 628; Price v. Haynes, 37 Mich. 487; Scott v. Colman, 5 Litt (Ky.) 349; Guerin v. Hunt, 6 Minn, 375; Rundlett v. Dole, 10 N.H. 458.

Court has no power to alter a stipulation of facts. Gerdtzen v. Cockrell, 50 Minn. 546; Bingham v. Winona Co. 6 Minn. 136; Keys v. Warner, 45 Cal. 60.

Where assignee in Federal bankruptcy fails to take over property as too much incumbered to have value as an asset, title remains in bankrupt. Bushane v. Ball, 161 U.S. 515; Bank v. Lasater, 115 U.S. 115; Reynolds v. Crawfordsville Bank, 112 U.S. 405; Paige v. Waring, 76 N.Y. 463.

Rourke, Kvello & Adams and Shepart & Catherwood for respondent.

An assignment for the benefit of creditors is voluntary and vests title in the assignee. Segnitz v. Trust Co., 83 N.W. 327; Barth v. Backhus, 140 N.Y. 230, 35 N.E. 425, 37 A. S. R. 545; Townsend v. Coxe, 37 N.E. 689.

Assignment for benefit of creditors will be upheld in this state, except as to resident creditors and bona fide purchasers. Thompson v. Ellenz, 59 N.W. 1023; Williams v. Kemper Co., 43 P. 1148; Cole & Cunningham 33 L.Ed. 547; Barnett v. Kinney 37 L.Ed. 249; Memphis Bank v. Honchues, 115 F. 96.

Admission of evidence after a stipulation of all facts is made between parties, is discretionary with the court. Second Nat'l Bank v. First Nat'l Bank, 8 N.D. 50, 76 N.W. 504; Turner v. St. John, 8 N.D. 245, 78 N.W. 340; Ward v. Clay, 23 P. 50; Meldrum v. Kenefick, 89 N.W. 863; Keens v. Robertson, 65 N.W. 897; Butler v. Chamberlain, 92 N.W. 154; Brown v. Cohn, 60 N.W. 826; 4 Current Law, 1555.

Quitclaim deed insufficient to support title in action to determine adverse claims. Hamilton v. Beaudreau, 47 N.W. 952; Kerr v. Freeman, 33 Miss. 292; Orton v. Smith, 59 S.Ct. 266, 15 L.Ed. 393.

OPINION

SPALDING, J.

This is an action to determine adverse claims to the N 1/2 of section 2 in township 132 N. range 57 W., in Sargent county, N.D. Plaintiff had judgment in the district court, and the defendant, Hartzell, appeals, and asks a trial de novo.

Many questions are raised which depend largely on the determination of the main question. The facts are as follows: One Field, whom we infer to be a resident of Wisconsin, held a first mortgage on the land in question. One F. T. Day, also a resident of Wisconsin, held a second mortgage thereon. Both these mortgages were duly recorded. Day became the owner of the fee to said premises on the 23rd day of July, 1890, through a sheriff's deed conveying the same to him under a foreclosure of his second mortgage. June 3, 1893, Day made an assignment for the benefit of creditors to one Momsen, under the provisions of chapter 80 of the Revised Statutes of Wisconsin of 1898, and the acts amendatory thereof and supplemental thereto. Momsen on the same day consented to act as such assignee, and a certified copy of the original deed of assignment was filed and entered in the office of the clerk of the circuit court of Milwaukee county, Wis., as required by the laws of Wisconsin. A certified copy of such certified copy of the deed of assignment was filed for record in the office of the register of deeds of Sargent county, N.D. on the 21st day of June, 1898, and the original deed of assignment on the 25th day of April, 1906. A schedule of property was duly filed as required by law, but neither the deed of assignment, nor the schedule, included the land in controversy. April 20, 1895, Momsen, as assignee under license of the circuit court of Milwaukee county, executed, acknowledged, and delivered to Field, the holder of the first mortgage, a deed, which he also executed in the name of Day, as his attorney in fact. This deed was filed for record in the office of the register of deeds for Sargent county on the 20th day of June, 1898. The deed of assignment contains a provision reading as follows: "And, in furtherance of the premises, the said party of the first part does hereby make, constitute and appoint the said party of the second part, his true and lawful attorney, irrevocable, with full power and authority to do all acts and things which may be necessary in said premises, to the full execution of the trust hereby created, * * * and to execute, acknowledge and deliver all necessary deeds, instruments and conveyances, and the said party of the first part does hereby authorize said party of the second part to sign the name of said party of the first part * * * to all instruments in writing whenever it shall be necessary so to do to carry into effect the object, design and purpose of this trust." It is apparent that the deed to Field was signed in the name of Day by Momsen as his attorney in fact by reason of the provision above quoted. In May, 1902. Field deeded to one Lindsley, and in December, 1904, Lindsley deeded to Adams, the plaintiff and respondent herein. This latter deed was recorded April 7, 1905. This in brief is the chain of title on which respondent relies. Appellant relies for his title upon a quitclaim deed executed and delivered to him by Day May 5, 1903, and filed for record in the office of the register of deeds of Sargent county, N.D., May 9, 1903. At the date of the assignment the premises described were wholly uninclosed, and no buildings or other improvements were thereon. Momsen, neither as assignee or otherwise, ever took possession thereof, and no assignment, insolvency, or other similar proceedings, either original or ancillary to the Wisconsin assignment, were ever had or instituted in this state.

The Wisconsin statute referred to, under which such assignment was made, which was received in evidence, reads as follows:

"Chapter LXXX.--Of Voluntary Assignments.

"Supervision of. Sec. 1693. The circuit court or the judge thereof in vacation, shall have supervision of the proceedings in all voluntary assignments made under the provisions of this chapter, and may make all necessary orders for the execution of the same.

* * * *

"Inventory of Assignor's Assets. Sec. 1697. (As amended by chapter 251, Laws 1885; chapter 317, Laws 1887.) Within twenty days after the execution of the assignment, the assignor shall also make and file in the office of said clerk a correct inventory of his assets and a list of his creditors, stating the place of residence of each such creditor and the amount due to each, which inventory and list shall be verified by his oath, and have affixed a certificate of the assignee that the same is correct, according to his best knowledge and belief; but no mistake therein shall invalidate such assignment or affect the right of any creditor.

* * * *

"Removal of Assignee. Sec. 1702. (As amended by section 1, c. 548, Laws 1887.) The circuit judge may, upon notice and after a hearing, remove any assignee who is shown to be incompetent, or to have become disqualified, or to have wasted or misapplied any of the trust estate, and shall also remove any such assignee upon the application of a majority of the creditors of such assignor, who shall also represent a majority in value of the debts allowed against said estate, and compel by order a settlement of his account and surrender of the estate to his successor, and shall appoint the person named in such petition, or some suitable person as his successor, who shall qualify in the same manner provided by law for the assignee appointed by the instrument of assignment; and in place of any assignee who shall die or be removed may appoint another, who shall give the bond and be subject to like duties and responsibilities as to the estate remaining undisposed of, and proceedings remaining to be taken, as if appointed by the instrument of assignment.

* * * *

"Who may be Discharged. Sec. 1702d. (Section 1, c. 385, Laws 1889.) Any person who shall have made a voluntary assignment for the benefit of his creditors under or in pursuance of the laws of this state, may be discharged from his debts as a part of the proceedings under such assignment upon compliance with the provisions of this act."

In addition to this such statute contains other provisions relating to the discharge of the assignor.

The principal question in this case is, Did the assignment referred to transfer the title of Day to the land in question? The authorities as to the effect of voluntary assignments for the benefit of creditors upon the title of real estate situated outside the jurisdiction in which the assignor resides and makes his assignment may be said to be not altogether harmonious; many of them holding that such an assignment conveys the real estate wherever situated, while others qualify this in favor of creditors who are not residents of the state where the assignor resides, and where the assignment is made. As to the effect of involuntary assignments, or what may be termed "state bankruptcy or insolvency laws," on real property...