Rowell v. Lewis

• Decision Date: 25 February 1901
• Parties: ROWELL v. LEWIS et al.
• Court: Maine Supreme Court

49 A. 423

95 Me. 83

ROWELL

v. LEWIS et al.

Supreme Judicial Court of Maine.

Feb. 25, 1901.

(Official.)

Report from supreme judicial court, Kennebec county, in equity.

Bill by David J. Rowell against Weston Lewis and others. Heard on report. Bill sustained.

Argued before WISWELL, a J., and EM ERY, WHITEHOUSE, STROUT, SAVAGE, and FOGLER, JJ.

S. & L. Titcomb, for plaintiff.

M. S. Holway, for defendants.

EMERY, J. The plaintiff bargained in writing certain logs of his to the Richards Paper Company, and in the writing stipulated to deliver the logs, but to retain the title to them until all the notes of the company given for the price were paid in full. He delivered the logs, but did not record in any town the writing containing the above stipulations. After the Richards Paper Company received the logs into its possession, but before the payment of any of its notes given therefor, it made a common-law assignment of all its property to the defendants for the benefit of its creditors. The question raised is whether the defendants, as such assignees, have acquired the title to these logs without payment for them, notwithstanding the express stipulation in the contract of sale that the title should remain in the plaintiff until full payment was actually made.

The defendants claim that the plaintiff has lost his title, as against them, by his neglect to record in the proper registry the written instrument of sale, as required by chapter 32 of the Public Laws of 1895, amendatory of Rev. St. c. Ill, § 5, which enacts that such a stipulation shall be in writing, and "shall not be valid, except as between the original parties thereto, unless it is recorded in the office of the clerk of the town in which the purchaser resides at the time of the purchase."

It should be noted at the outset that the defendants' only title is by virtue of a common-law assignment, unaided by any statutes of insolvency or bankruptcy. Their assignment is also unaided by any provisions in the old statute relating to assignments for the benefit of creditors, since that statute was repealed by the subsequent insolvency statutes. The defendants, therefore, cannot invoke any of the titles or powers conferred by statute upon assignees in bankruptcy or insolvency, or other statutory assignment. This excludes from our consideration in this case all the decisions of this or other courts as to the statutory titles and powers of assignees.

It should be further noted that the instrument of assignment does not purport to convey or transfer the logs, nor does it purport to convey or transfer any articles in the possession of the assignor. It purports to convey and transfer only "the real estate and personal property of or belonging to" the assignor, the Richards Paper Company. Whatever articles were not the "property of" the assignor or did not "belong to" it are not embraced in the assignment, even though they were in the assignor's possession. The defendants therefore have no title to these logs as purchasers, or as the agents of creditors taking security upon the logs; hence they cannot successfully invoke the protection afforded by the registry statutes to purchasers and creditors.

In fine, these defendants, whose only claim is under this assignment, are not within the protection of the statute of 1805, e. 32. above quoted. They are not new parties as to these logs. They are not purchasers for value. State v. Patten, 49 Me. 383. They merely represent the Richards Paper Company. They are its representatives or its agents or trustees, rather than its grantees or assignees. Thy cannot, as such assignees, hold the unmatured negotiable paper of the assignor free from equities, though it was formally indorsed to them before maturity and without notice. Billings v. Collins, 44 Me. 271. As said by Mr. Justice Story in Winsor v. McLellan, 2 Story, 492, Fed. Cas. No. 17,887: "The principle has long been established that the assignee in bankruptcy does not stand in the position of a purchaser, nor even in so favorable a position as an individual creditor may stand. The assignee in bankruptcy takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition as the bankrupt himself held it, and subject to all the equities which exist against the same in the hands of the bankrupt." The same views are expressed as to assignees in insolvency in Hutchinson v. Murchie, 74 Me. 187, and Williamson v. Nealey, 81 Me. 447, 17 Atl. 404. Certainly assignees under a naked common-law assignment of only property belonging to the debtor do not occupy any better position. They practically become "original parties" by substitution. We do not find that the statutes requiring such contracts as this to be recorded have ever been considered, even in argument, as affording protection to others than purchasers and attaching creditors. Chief Justice Peters only voiced the general understanding when he said in Field v. Gellerson, 80 Me. 273, 14 Atl. 71: "The statute (Rev. St. c. Ill, § 5) requires such...