Miller v. Waite

• Decision Date: 12 July 1900
• Docket Number: 9,039
• Citation: 83 N.W. 355,60 Neb. 431
• Parties: FRED A. MILLER, ASSIGNEE, v. CHARLES E. WAITE ET AL
• Court: Nebraska Supreme Court

83 N.W. 355

60 Neb. 431

FRED A. MILLER, ASSIGNEE, v. CHARLES E. WAITE ET AL

No. 9,039

Supreme Court of Nebraska

July 12, 1900

ERROR to the district court for Lancaster county. Tried below before HALL, J. Judgment of reversal adhered to.

Reversed and remanded.

Mockett & Polk, Stewart & Munger, Darnall & Kirkpatrick, E. M Coffin, T. J. Doyle, V. H. Stone and C. S. Rainbolt, for plaintiff in error.

Willard E. Stewart, E. C. Strode and Stearns & Tyrrell, contra.

OPINION

HOLCOMB, J.

A decision reversing the judgment of the lower court was rendered in this case November 23, 1899, and is reported in 59 Neb. 319. 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 twenty-four hours of its execution as provided by section 6, chapter 6 Compiled Statutes, 1899. Upon the other propositions announced in that opinion, we are quite satisfied of their correctness.

It was said in the first opinion, p. 320: "Another contention of the defendants is that the assignment was void because of the 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, divest 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, chapter 6, Compiled Statutes, 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 to the terms of 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 situate 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 property situate 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 "execution" found in section 6 heretofore quoted, it was held that delivery of the deed of assignment and surrender of control over it was 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, p. 356: "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 in 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 Lancaster County 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 the parties, if actual notice was imparted to the others of the assignee's possession and title, the failure to record the instrument would not avoid the assignment as to all parties having such actual notice. The rule thus announced has not since been followed, and was in direct terms overruled in the case of Sager v. Summers, 49 Neb. 459, 68 N.W. 614.

In Connor v. Omaha Nat. Bank, 42 Neb. 602, 606, 60 N.W 911, in speaking with reference to section 104 of the assignment laws of Wyoming, reading as follows, "An assignment for the benefit of creditors is void against creditors of the assignor, and against purchasers and incumbrancers in good faith and for value, unless it is recorded and unless the inventory required is filed pursuant to this chapter within twenty days after the date of the assignment," RAGAN, C. uses the following language: "If it can be said that this evidence was sufficient to establish that an inventory was made and filed by France as required by section 100, it still falls far short of establishing that France, within twenty days from the date he made the assignment for the benefit of his creditors,...