Kirkendall v. Weatherley

• Decision Date: 10 November 1906
• Docket Number: 14,341
• Parties: FREEMAN P. KIRKENDALL ET AL., APPELLEES, v. ERNEST S. WEATHERLEY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

109 N.W. 757

77 Neb. 421

FREEMAN P. KIRKENDALL ET AL., APPELLEES, v. ERNEST S. WEATHERLEY ET AL., APPELLANTS

No. 14,341

Supreme Court of Nebraska

November 10, 1906

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

Joel W West, Guy R. C. Read and Jacob Fawcett, for appellants.

William Baird & Sons and Baldrige & De Bord, contra.

AMES C. OLDHAM and EPPERSON, CC., concur.

OPINION

AMES, C.

The Lewis Investment Company is, or was, an Iowa corporation having its principal place of business at the city of Des Moines, in that state. It became insolvent, and on the 24th day of December, 1895, executed to one Nelson Royal, for an express nominal consideration of one dollar, a general assignment of all its property wherever situated, for the benefit of creditors, and reciting the trusts and powers usual in such instruments. Royal was a private citizen and a resident of the city named. At the time of the execution and delivery of said instrument the corporation was the owner of a city lot in the city of Omaha, in this state, but the assignment was filed for record in Douglas county on the same day as 1896, some ten months after its execution, but it was as to form and substance in conformity with the statute of the state of Iowa relative to the subject of voluntary assignments for the benefit of creditors. On the 26th day of August, 1896, Royal, pursuant to a judicial order rendered by one of the Iowa courts, conveyed the lot, or attempted so to do, to one Sage, and Sage afterwards deeded it to one Smith. The former of these deeds was filed for record in Douglas county on the same day as the assignment, but the latter not until September, 1902. Smith executed a lease of the premises to Kirkendall, one of the plaintiffs below and appellee, who went into and is now in possession of the same. The other plaintiff below and appellee is the executor of the will of Smith, now deceased. At the time of the execution of the assignment the Lewis Investment Company was indebted to the Des Moines National Bank upon certain promissory notes which the latter afterwards sold and assigned to defendant and appellant, Weatherley, who in 1904, begun in the district court for Douglas county a suit in foreign attachment thereon against the investment company, and caused a levy to be made upon the Omaha lot. The action proceeded regularly to judgment, sale and confirmation, and the issuance of a writ of assistance to put the purchaser, who is the plaintiff in attachment, into possession, when this suit was begun by the tenant and the executor of the lessor to perpetually restrain the process and obtain a decree quieting their title and possession. The defendant filed a cross-bill, praying similar relief in his own behalf, and upon the issues thus joined there was a trial, resulting in a judgment for the plaintiffs, from which this appeal is prosecuted.

The statute of this state relative to voluntary assignments enacts that "no voluntary assignment for the benefit of creditors hereafter made shall be valid unless the same shall be made in conformity to the terms of this act." Comp. St., ch. 6, sec. 1. It further provides that every such assignment shall name as assignee the sheriff of the county in which the assignor or one of several assignors resides, "and within 24 hours after its execution it shall be filed for record in the clerk's office of the county in which the assignee resides" (sec. 6), and within 30 days thereafter in the clerk's office of every county in which there shall be real estate of the debtor, and that a failure of such record within the time aforesaid shall avoid the instrument as to the property situated in any such county. It is likewise enacted that "real estate so assigned shall be described in the deed of assignment in such manner as would be requisite in an ordinary deed of conveyance thereof" (sec. 3). None of these requirements was complied with in the instrument under discussion, so that it is quite evident that if it had been executed in this state it would have been wholly ineffectual for any purpose. Sager v. Summers, 49 Neb. 549. And if in such a case it had complied with all of them except that with respect to description, it would without doubt have been insufficient to convey the lot in suit. Saying nothing about the other requirements, can omission to comply with those relative to description and recording be excused and the instrument upheld for the reason that the assignor was a nonresident of the state or a foreign corporation? The evident policy of the law is to compel the immediate identification of the real property sought to be conveyed, and facilitate, not only the record of the instrument, but also the ascertainment by mere inspection whether such record has been duly made. One obvious object of this regulation is that creditors may be speedily advised whether lands of the debtor situate in any particular county are or will be claimed by the assignee. The statute makes no exception. Can the court make one? We think not. An elementary and nearly, if not quite, universal rule of law is that instruments intended to affect the title of real estate must, to be effectual, conform to the law of the state or country in which the land is situated, or be such as that law authorizes or prescribes. This proposition is, we think, too well settled to require the citation of authorities in its support. We know of no principal or authority that exempts voluntary assignments for the benefit of creditors from this rule. Nor do we know of any law which limits the right of seizure of property, which a debtor has made an ineffectual attempt to convey, to creditors who are residents of the state. Citizens of each state have all the privileges of citizens of every other state, among which, undoubtedly, are the rights to apply to the courts of the latter and to have the aid of their process for the enforcement and the collection of their demands and the protection of their persons and property.

But the payee of the notes, which were the foundation of this suit in attachment, retained them until after their maturity and proved them in the Iowa insolvency...