Farmer v. Cobban
| Decision Date | 28 February 1886 |
| Citation | 4 Dak. 425,29 N.W. 12 |
| Parties | Farmer, Assignee, and another v. Cobban. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
On appeal from district court, county of Miner.Winsor & Swezey, for appellant, Walter H. Cobban. George Rice and Robert Tripp, for respondents, George R. Farmer, Assignee, and another.
On the sixteenth day of June, 1883, at Howard, in Miner county, Dakota, Francis M. Lighthizer made a general assignment of all his property to the plaintiff, for the benefit of all his creditors. The plaintiff took possession of the property by virtue of such assignment, and held the same until the twenty-seventh day of June, 1883, when the defendant, Walter H. Cobban, as sheriff of said county, seized the property in controversy by virtue of a warrant of attachment, regularly issued, in favor of Morris Auerbach and others, as plaintiffs, and against the said Francis M. Lighthizer, as defendant. On the fifth day of July, 1883, the said Lighthizer filed in the office of the register of deeds of said county the inventory contemplated by title 3 of the Civil Code of this territory, entitled “Assignments for the benefit of creditors.” This action is brought by the assignee to recover the possession of said property. The cause was tried by jury, at the ______ term of the district court for said county, and, by direction of the court, a verdict was rendered for the plaintiffs, and against the defendant, for a return of the property, and fixing the value of the same at $6,000, to which the defendant duly excepted, and the case comes to this court for review.
Several assignments of error are presented, but only one question is relied upon by appellant, and that is as to the validity and sufficiency of the assignment made by Lighthizer to pass the title to the property in question to the assignee, the plaintiff herein. Section 2034 provides that, within 20 days after an assignment is made for the benefit of creditors, the assignor must make and file, in the manner prescribed by section 1938, a full and true inventory, showing, among other things, (subdivision 7,) “all the assignor's property at the date of the assignment, both real and personal, of every kind, not so exempt, and the incumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such property, according to the best knowledge of the assignor.” Section 2035 then provides as follows: “An affidavit must be made by every person executing an assignment for the benefit of creditors, to be annexed to and filed with the inventory mentioned in the last section, to the effect that the same is in all respects just and true, according to the best of such assignor's knowledge and belief.”
The plaintiff in the action at bar introduced in evidence an inventory, which was verified as follows:
“Exhibit B.
Territory of Dakota, County of Miner-ss.: Francis M. Lighthizer, of Howard, Miner county, Dakota territory, being duly sworn, deposes and says that the following inventory is a full and true statement of all his estate, both real and personal, in law and equity, and incumbrances thereon, and all vouchers and securities relating thereto, and the present value thereof, with a schedule of all his debts, liabilities, and property exempt, to the best of affiant's knowledge and belief.
Francis M. Lighthizer.
“Subscribed and sworn to before me this fifth day of July, A. D. 1883.
“F. L. Mulford, Notary Public, Miner County, Dakota Territory.”
[F. L. Mulford, Dakota Notary Public.]
That this is not in form the verification required by the Code to be attached to the inventory must be conceded; and the question to be determined is whether it is so far defective as to render the assignment void, and the property attempted to be passed thereby subject to attachment by the creditors of the assignor. The decision of this question necessarily requires a construction of the various provisions of the statute providing for and regulating such assignments. That such construction should be given as would give effect to all the provisions, taken as a whole, is too well established to require further discussion. The initiatory acts are to be performed by private persons, not public officers. The public generally, and especially all creditors of an assignor, have an interest in such acts, not only to the extent that all the proceedings whereby an assignor voluntarily enforces this process in the liquidation of his debts shall be regular, and according to the forms provided by the statute, but a further right to know, from the assignor's own acts, that the inventory by him...
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Goss v. Herman
... ... assignment for the benefit of creditors, its absence is fatal ... to the assignment. Farmer v. Cobban, 4 Dak. 425, 29 ... N.W. 12; Landauer v. Conklin, 3 S.D. 462, 54 N.W ... 322; Cannon v. Deming, 3 S.D. 421, 53 N.W. 863; ... Juliand v ... ...
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Bradley v. Bailey
...See Van Horn v. Smith, 59 Iowa 142 (12 N.W. 789); Van Patten v. Burr, 52 Iowa 518 (3 N.W. 524); State v. Rose 58 N.W. 514; Farmer v. Cobban 29 N.W. 12; Wright v. 55 N.W. 931; Lesher v. Getman, 28 Minn. 93 (9 N.W. 585). II. The second ground of demurrer presents the question as to whether th......
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Bradley v. Bailey
...Van Horn v. Smith, 59 Iowa, 142, 12 N. W. 789;Van Patten v. Burr, 52 Iowa, 518, 3 N. W. 524;State v. Rose (N. D.) 58 N. W. 514;Farmer v. Cobban (Dak.) 29 N. W. 12;Wright v. Lee (S. D.) 55 N. W. 931;Lesher v. Getman, 28 Minn. 93, 9 N. W. 585. 2. The second ground of demurrer presents the que......
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Hockaday v. Drye
...the court to interfere with its receiver upon the intervention of the creditors and to administer the trust in equity. ¶25 In Farmer v. Cobban, 29 N.W. 12, the supreme court of Dakota Territory says: "What was the legal interest or title vested in the assignee after the delivery of the assi......