Glanton v. Jacobs

• Decision Date: 03 December 1895
• Citation: 23 S.E. 335,117 N.C. 427
• Court: North Carolina Supreme Court
• Parties: GLANTON et al. v. JACOBS et al.

23 S.E. 335

117 N.C. 427

GLANTON et al.

v.JACOBS et al.

Supreme Court of North Carolina.

Dec. 3, 1895.

Assignment for Creditors — Delay in Filing Schedule of Preferred Debts— Registration of Deed.

1. Failure to file schedule of preferred debts within five days after registration of deed of assignment for creditors, as required by Acts 1893, c. 453, renders the deed void.

2. Under Acts 1893, c. 453, requiring schedule of preferred debts to be filed within five days after "registration" of deed of assignment for creditors, time for filing schedule commences to run from date of filing deed for registration, irrespective of the actual registration.

Appeal from superior court, Forsyth county; Bryan, Judge.

Action by Glanton & Cotton and others against Joe Jacobs, trustee, and others, to declare void a deed of assignment for creditors made by the Sneed Furniture Company. Judgment for plaintiffs. Defendants appeal. Affirmed.

Glenn & Manly and E. B. Jones, for appellants.

Watson & Buxton and J. L. Patterson, for appellees.

CLARK, J. As was said in Bank v. Gilmer, 116 N. C. 684, 707, 22 S. E. 2: "Chapter 453, Acts 1893, is not a mere recommendation from the legislature to insolvents as to the form of assignments and proceedings thereunder, but in its very nature the act is im-perative. If not complied with by the assignor by filing schedule as required, the assignment is invalid." This has been cited and approved in Prank v. Heiner, 23 S. E. 42, and Bank v. Gilmer (both at this term) 23 S. E. 333. These decisions are sustained by the great weight of authority in other states, the numerous cases being cited in the excellent brief filed by the plaintiffs' counsel. The statute being mandatory, it is necessarily so as to time. Mather v. McMillan, 60 Wis. 546, 19 N. W. 440, is in point, in which the deed of assignment was held invalid because recorded one day too late. Familiar instances are our own cases in which the service of notices of appeal and cases on appeal and the like have been held invalid when not made within the prescribed time. Wade v. City of Newbern, 72 N. C. 498; Taylor v. Brower, 78 N. C. 8; Adams v. Reeves, 74 N. C. 106. The deed of assignment was filed for registration on the 6th of January, 1894. The schedule of preferred debts which is required to be filed within five days after the registration, was not filed till the 12th of January, 1894. "Excluding the first day and including the last, "—the mode of computation prescribed by the Code, § 596, —this was not in time. That section excludes Sunday only when it is the last day of the time limited, so the...