Blair v. Anderson

• Decision Date: 06 January 1900
• Docket Number: 11,444
• Citation: 61 Kan. 374,59 P. 644
• Parties: E. W. BLAIR v. E. M. ANDERSON
• Court: Kansas Supreme Court

59 P. 644

61 Kan. 374

E. W. BLAIR v. E. M. ANDERSON

No. 11,444

Supreme Court of Kansas

January 6, 1900

Decided January, 1900.

Error from Saline district court; R. F. THOMPSON, judge.

Judgment reversed and cause remanded.

Bond & Osborn, and Garver & Larimer, for plaintiff in error.

Mohler & Hiller, for defendant in error.

OPINION

JOHNSTON, J:

The principal question presented for determination by the record in this case is whether the schedule of liabilities is so far a part of the deed of assignment of an insolvent debtor that a failure to file a schedule, in the form and at the time prescribed by statute, renders the deed inoperative and invalid. There was attached to the deed in question a schedule of liabilities by the assignor, giving names of creditors, their post-office addresses, together with the amounts and character of the debts, but it was not verified until the following day, nor until after an attachment had been levied on the assigned property. The trial court held that the deed was void on its face because the schedule was not verified as required by statute. In this ruling there was error. It is the deed of assignment alone which transfers the property and creates the trust. The statute does not prescribe that the schedule of liabilities shall be attached to or form a part of the deed of assignment, nor that they shall be made at the same time. The assignment is to be recorded in the office of the register of deeds, while the schedule is to be filed with the clerk of the district court. Prior to 1876 no schedule of liabilities was required, but in that year the legislature amended the statute and provided that in every case of assignment a schedule of liabilities shall be filed in the office of the clerk of the district court on the day of the execution of such assignment. (Gen Stat. 1897, ch. 111, § 38; Gen. Stat. 1899, § 383.)

Is the requirement of the amended law mandatory, so that the omission to file the schedule will render an assignment already made inoperative and void ? It was competent for the legislature to declare that the deed should not take effect until the schedule was filed, or that the omission to file the latter should defeat the assignment, but no such provisions are to be found in the statute. While the statute requires that the schedule be filed within a certain time, it does not declare that it shall not be done afterward, nor what the effect of the omission to file will be. The making and filing of an assignment and the making and filing of a schedule are, as we have seen, separate acts which may be done at different times, and the instruments when made, are to be filed in different offices. The language of the statute plainly shows that the legislature contemplated that the assignment should be first made. Under the common law, a schedule...