Brown v. Parker

• Decision Date: 16 October 1899
• Docket Number: 1,220.
• Citation: 97 F. 446
• Parties: BROWN v. PARKER.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 446

BROWN v. PARKER.

No. 1,220.

United States Court of Appeals, Eighth Circuit.

October 16, 1899

T. S Stevens (George J. Dobbs and George E. Stoker, on the brief) for plaintiff in error.

Webb McNall (A. B. Quinton and E. S. Quinton, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This is a controversy between an assignee for the benefit of creditors and a mortgagee of personal property of the assignors. The mortgaged property was situated in the state of Kansas, and the mortgage to the defendant in error, George R. Parker, was made, and the property in Kansas was delivered to him, on July 19, 1893, by the junior member of the firm of John H. Engle & Son, the assignors. The firm had property in the state of Iowa and in the state of Kansas, and on July 18 1893, the senior member of the partnership made a general assignment of the firm property to Edward Sudendorf for the benefit of their creditors. Sudendorf accepted the trust filed the assignment in Fremont county, in the state of Iowa, on July 18, 1893, and on July 22, 1893, filed it in Smith county, in Kansas, and demanded the possession of the mortgaged property from the defendant in error. But Sudendorf gave no bond as assignee, and on August 2, 1893, he refused to qualify as such; and the district court of Fremont county appointed the plaintiff in error, George H. Brown, in his stead, and the latter qualified, and is still acting as assignee. There was evidence that, before and at the time Parker took his mortgage, he knew that the assignment had been made.

It is assigned as error that upon this state of facts the court below instructed the jury to return a verdict for the mortgagee upon the ground that no right or title to the assigned property passed to the assignee before Brown was appointed, on August 2, 1893, because the first assignee failed to give his bond. This assignment is well founded. The statute of Iowa on this subject reads:

'In case any assignee shall die before the closing of his trust, or in case any assignee shall fail or neglect for the period of twenty days after the making of any assignment, to file the inventory and valuation, and give bonds as required by this chapter, the district court, or any judge thereof, of the county where such assignment may be recorded, on the application of any party interested, shall appoint some person to execute the trust embraced in such assignment; and such person, on giving bond with sureties as required above of the assignee, shall possess all the powers conferred upon such assignee, and shall be subject to all the duties hereby imposed as fully as though named in the assignment. * * * ' McClain's Ann. Code Iowa, Sec. 3307.

The assignment was made to and accepted by Sudendorf on July 18 1893. The statute allowed him 20 days in which to give his bond. If he had qualified within that time, his right and title to the property would have dated from the execution and acceptance of the assignment; for it is not the filing of the bond, but it is the delivery and acceptance of the deed, that creates the trust. Within the 20 days he refused to qualify, and the proper court appointed the plaintiff in error, in the words of the statute, 'to execute the trust embraced in the assignment'; and the statute declares that this appointee 'shall possess all the powers conferred upon such assignee, and shall be subject to all the duties hereby imposed.' The plain terms of the statute, and the familiar rule that equity will not permit a trust to fail for want of a trustee, point alike to the inevitable conclusion that the rights of the appointee under the law were the same as those of the appointee under the deed. The assignment vested the title and the right of possession of the assigned...