Miller v. Waite

• Decision Date: 12 July 1900
• Parties: MILLER v. WAITE ET AL.
• Court: Nebraska Supreme Court

60 Neb. 431

83 N.W. 355

MILLER

v.WAITE ET AL.

Supreme Court of Nebraska.

July 12, 1900.

Syllabus by the Court.

1. The provisions of section 6, c. 6, Comp. St. 1899, requiring the filing of a deed of assignment for record in the clerk's office of the county in which the assignee resides within 24 hours after its execution, is mandatory; and a failure to file such instrument within the time limited by statute avoids the assignment, and renders it of no force and effect.

2. A substantial compliance with and conformity to the statutory provisions regulating the subject of voluntary assignments for the benefit of creditors are a condition essential to effectuate a valid transfer of title to the property assigned to the assignee named in the assignment.

3. An assignee of property assigned for the benefit of creditors, in the peaceable and undisputed possession thereof, has a possessory title therein sufficient to maintain an action for conversion against those who illegally and without authority obtain possession of such property, and unlawfully convert the same to their own use, even though the deed of assignment be invalid for want of being filed for record within 24 hours from its execution, as provided by statute.

4. Where a petition alleges that the plaintiff, as assignee, was in the exclusive, open, and notorious possession of property assigned for the benefit of creditors, which property was illegally and unauthorizedly taken and unlawfully converted by defendants to their own use, held, upon demurrer to such petition, that the same stated a cause of action, notwithstanding that the petition showed on its face that the deed of assignment under which plaintiff was in possession was not filed for record for 10 days after its execution.

5. Opinion in Miller v. Waite (Neb.) 80 N. W. 907, modified.

On rehearing. Reversed.

For former opinion, see 80 N. W. 907.

HOLCOMB, J.

A decision reversing the judgment of the lower court was rendered in this case November 23, 1899, and is reported in 80 N. W. 907. A rehearing being granted, we again have the case before us for consideration. We were moved to reinvestigate the case solely because of a doubt as to the correctness of the position taken in the first opinion as to the effect or consequence of a failure to have filed for record the deed of assignment within 24 hours of its execution, as provided by section 6, c. 6, Comp. St. 1899. Upon the other propositions announced in that opinion, we are quite satisfied of their correctness. It was said in the first opinion: “Another contention of the defendant is that the assignment was void because of a failure to record the deed within twenty-four hours from the time of its execution. Our view of the matter is that the title to the property passed to the assignee when the deed was delivered. * * * The failure to file a deed of assignment for record within the time fixed by statute would not, ipso facto, devest the assignee's ownership of the trust estate.” A more careful investigation of the subject in the light of the statutory provisions and prior utterances of this court leads us to the view that, while the conclusion reached was the correct one, we were in error in the position taken on the proposition mentioned, and that in this regard we incorrectly stated the law as applied to the sections of the statute under consideration. Section 1, c. 6, Comp. St. (being the general statutory provisions regulating voluntary assignments for the benefit of creditors), says “that no voluntary assignment for the benefit of creditors hereafter made shall be valid unless the same shall be in conformity with this act.” Section 6 provides the manner in which the deed of assignment shall be executed, and, inter alia, says: “And within twenty-four hours after its execution, it shall be filed for record in the clerk's office of the county in which the assignee resides. * * * Within thirty days after its execution it shall be filed for record in every other county in this state in which there shall be situated real property conveyed therein, and such assignment shall be recorded in each such county in the manner aforesaid. A failure to file such assignment for record within the time aforesaid in any county, in which, by the terms of this section, it is required to be recorded, shall avoid such assignment as to the property situated in such county. * * *” The language of the statute is plain, strong, and unambiguous. It is susceptible of but one construction. That it is mandatory in its character is obvious from its reading, and a failure to conform to its provisions avoids the assignment, and renders it without force and effect. A substantial compliance with and conformity to the statutory provisions regulating the subject is a condition essential to effectuate a valid transfer of title to the property assigned to the assignee therein named.

The rule of construction herein announced is not a new one in this jurisdiction. In Wells v. Lamb, 19 Neb. 355, 27 N. W. 229, in construing the meaning of the word “executed,” found in section 6, heretofore quoted, it was held that delivery of the deed of assignment, and surrender of control over it, were included in the meaning of the word, as well as the act of making and signing the instrument. Says the court, through Judge Reese, in the opinion: “It could not be claimed that if a debtor should write out and sign an instrument of assignment, but, being uncertain as to the necessity of the step, place it in his pocket or safe, that such assignment would thus be executed, and his right to pay his debts and continue his business would be destroyed. Nor could it be said that, if afterwards, but not within twenty-four hours, he should find it necessary to carry out his previously formed purpose, the assignment would have to be rewritten and signed, in order that it might be recorded within twenty-four hours after its execution.” While the precise point under consideration was not therein raised or decided, it is evident from the language employed that the assignment, to be valid, should be filed for record within the twenty-four hours' time mentioned in the statute. In Bank v. Horn, 34 Neb. 742, 52 N. W. 562, it was held that the provisions as to recording were to be construed as a registry act, and, being valid between ...