Summers v. White, 669

• Decision Date: 16 December 1895
• Docket Number: 675.,674,,669
• Citation: Summers v. White, 71 F. 106 (8th Cir. 1895)
• Parties: SUMMERS v. WHITE, U.S. Marshal, et al. SUMMERS, Sheriff, v. NEBRASKA-MOLINE PLOW CO. et al. SAME v. KINGMAN & CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

71 F. 106

SUMMERS v. WHITE, U.S.Marshal, et al.SUMMERS, Sheriff, v. NEBRASKA-MOLINE PLOW CO. et al.SAME v. KINGMAN & CO. et al.

Nos. 669, 674,, 675.

United States Court of Appeals, Eighth Circuit.

December 16, 1895

These cases grew out of the same transaction, and involve a common question, for which reason they have been considered together, and may be disposed of by a single opinion.On July 10, 1893, J. M. Burk made a general assignment for the benefit of his creditors to Charles E. Summers, the plaintiff in error, who was at the time sheriff of Fillmore county Neb.The assignment was made to said Charles E. Summers in his official capacity as sheriff, pursuant to the requirements of the assignment law of the state of Nebraska.Consol. St.Neb.1891, c. 4, Sec. 235.The deed of assignment was not witnessed.The sheriff recorded the assignment on July 11, 1893, took possession of the assigned property on that day, and remained in possession thereof until July 17 1893, when the property was taken from his custody by Frank E. White, United States marshal for the district of Nebraska under a writ of attachment issued by the circuit court of the United States for the district of Nebraska in a suit begun by Kingman & Co., a corporation, against J. M. Burk.Subsequently, on June 19, 1893, another levy was made by the marshal on the same property under a writ of attachment issued at the instance of the Nebraska-Moline Plow Company in a suit begun by it against J. M. Burk in the circuit court of the United States for the district of Nebraska.Subsequently Charles E. Summers intervened in the two attachment suits thus brought, claiming the attached property as assignee of J. M. Burk under the deed of assignment for the general benefit of Burk's creditors.Summers, as assignee, also brought an action of replevin against Frank E. White.United States marshal, and against Farrington Power and Louis Boehme, deputy marshals, and also against the Nebraska-Moline Plow Company and Kingman & Co.The action of replevin was instituted in the district court of Fillmore county, Neb., but was subsequently removed therefrom by the defendants to the circuit court of the United States for the district of Nebraska.The replevin suit aforesaid was eventually tried in the circuit court of the United States before a jury.The jury returned a special verdict, and on the return thereof the court entered a judgment in favor of Frank E. White, United States marshal, and against Charles E. Summers, assignee.At the same time it entered an order in each of the aforesaid attachment suits directing that the intervening petition of the assignee in each of said suits be dismissed at the assignee's cost.The record in each of the aforesaid attachment suits directing that the intervening petition of the assignee in each of the suits be dismissed at the assignee's cost.The record in each of said suits has been removed to this court by a writ of error sued out by the assignee.

Lionel C. Burr(F. B. Donisthorpe and Chas. L. Burr were with him on the brief), for plaintiff in error.

John L. Webster and James H. McIntosh, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

There are numerous questions presented by the record in these cases which were discussed at considerable length on the oral argument and in the briefs of counsel; but in our opinion the decision hinges on the inquiry whether the deed of assignment by J. M. Burk to Charles E. Summers, sheriff of Fillmore county, was rendered invalid, so far as the attaching creditors were concerned, by reason of the admitted fact that it was not witnessed.If the deed of assignment was invalid for want of an attesting witness, it is manifest, we think, that the attachments were properly levied, and that the assignee had no title which he could enforce as against the United States marshal, either by an original action of replevin, or by an intervening petition filed in the several attachment suits.The act regulating voluntary assignments for the benefit of creditors, which has been in force in the state of Nebraska since June 1, 1883, contains, among others, the following provisions, to wit:

'231.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.

'232.Every such assignment shall be of all the property, real and personal, of the assignor or assignors therein named wherever situated.* * *

'233.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. * * * '

'236.Such assignment shall be in writing and shall be executed in the manner in which a conveyance of real estate is, or shall be, required to be executed and acknowledged, in order to entitle the same to be recorded. * * * 'Consol. St.Neb.1891, p. 120, c. 4.

The statutes of that state contain the following provision relative to the execution of deeds of real estate:

'Deeds of real estate, or any interest therein, in this state, except leases for one year, or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, in the presence of at least one competent witness, who shall subscribe his or her name as a witness thereto, and be acknowledged or proved and recorded as directed in this chapter. 'Consol. St.Neb.1891, c. 47, Sec. 4324.

The first law on the subject of assignments for the benefit of creditors, that was adopted in the state of Nebraska on February 19, 1877(LawsNeb.1877, p. 24), did not, as it seems, contain any provision similar to...