Swart v. Swart
| Decision Date | 07 July 1879 |
| Parties | J. G. Swart, Assignee, v. J. W. Thomas. J. G. Swart, Assignee, v. S. W. Morgan |
| Court | Minnesota Supreme Court |
In each of these cases, the plaintiff, as assignee of Shepard & Cummings, under a general assignment in trust for the benefit of creditors, sued the defendant, in a justice's court to recover the value of goods sold and delivered to him by plaintiff's assignors. In each case, the defendant denied that plaintiff ever accepted the trust, or filed his bond within the time required by law, and alleged a levy on the debt in suit, under an execution against plaintiff's assignors. The plaintiff having obtained judgment in each case, the defendants appealed to the district court for Winona county, where, by stipulation, the actions were tried by Mitchell, J., without a jury, who found the following facts in each case: Prior to September 19, 1878, Shepard & Cummings had sold and delivered to the defendant goods of the value stated in the complaint, which they had charged against the defendant in the usual form of such accounts in day-books and ledgers, and for which the defendant has not paid. On September 19, 1878, Shepard & Cummings made a general assignment, executed according to law, to the plaintiff, who was a resident and freeholder of the state, and who, at the same time, accepted the trust and joined in the execution of the assignment, as party of the second part. The assignment and acceptance were duly filed at 4.15 P. M. of the same day. The assignors failed to file an inventory within ten days thereafter, as required by Laws 1876, c. 44, § 2. (Gen St. 1878, c. 41, § 24.) On October 23, 1878, the plaintiff took proceedings in the district court to compel the assignors to make and file an inventory, as a result of which an inventory was filed on January 2, 1879. On January 6, 1879, the plaintiff made and filed the proper bond.
On September 19, 1878, prior to the execution of the assignment the sheriff of Winona county, by virtue of an execution against Shepard & Cummings, took possession of their books of account, containing the account against this defendant, but did not leave with the defendant in this action a certified copy of his execution, nor any notice specifying the property levied on, until after the filing of the assignment; nor did he do any other act by way of levying on this account against the defendant, except taking possession of the books in which it was entered, till after the filing of the assignment.
As conclusions of law, the court found that the plaintiff's title under the assignment vested upon the filing of that instrument with his acceptance of the trust, and that, at the time of such filing, no levy had been made upon the account in suit. Judgment was accordingly ordered and entered, in each case, for the plaintiff, and the defendants appealed.
Judgments affirmed.
Lloyd Barber, for appellant, in each case.
Wilson & Gale and A. N. Bentley, for respondent, in each case.
These cases differ essentially from that of Kingman v Barton, 24 Minn. 295. In that case, the assignee failed to file his bond within the time prescribed by statute. The court held that the filing of a bond as required is in the nature of an acceptance of the trust, and an appearance in, and submission to the jurisdiction of, the court, for the purposes of the trust, by the assignee; and that his failure to file the bond, within the time prescribed, is equivalent to a refusal to accept the trust, and terminates whatever title vests in him by the...
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