Williams v. Kemper, Hundley & McDonald Dry Goods Co.
| Decision Date | 13 February 1896 |
| Citation | 43 P. 1148,4 Okla. 145,1896 OK 39 |
| Parties | WILLIAMS v. KEMPER, HUNDLEY & McDONALD DRY GOODS CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The voluntary assignment laws of Oklahoma have no extra territorial force or operation, and must be so construed as to embrace and operate upon deeds of assignment executed in Oklahoma, and not elsewhere.
2. Involuntary assignments, which are made under foreign insolvent laws, have no operation outside of the state under whose laws they are made, while a voluntary assignment is a personal common-law right, possessed by every owner of property, unless prohibited by statute, and may operate in other states as well as in the state where it is executed.
3. Voluntary assignments, valid in the state or territory where made, will, on the principle of comity, be upheld by the courts of other states against nonresident attaching creditors, even though the effect of the assignment is contrary to the policy and laws of the state where it is sought to be enforced. But this rule cannot be invoked as against resident creditors.
4. A voluntary assignment, made by a partnership residing and doing business in the Indian Territory to a trustee residing in said territory, which is valid under the laws relating to voluntary assignments in Indian Territory, and which conveys property situated in Oklahoma, although said assignment contains preferences which would render it void if made in Oklahoma, will, on the principle of comity, be upheld, and enforced against an attaching creditor of such partnership who resides in the state of Missouri.
5. A deed of assignment made and executed in the Indian Territory according to the laws of that territory, and conveying real estate in Oklahoma, is sufficient as a deed of conveyance in this territory if it conforms to all the statutory requirements of Oklahoma as to its recitals, execution, and acknowledgment, and has been duly filed for record in the office of register of deeds in the county where said land is situated.
6. The assignment laws of Oklahoma, only having been intended to embrace assignments made within the territory, have no application to voluntary assignments made in the Indian Territory, and an assignee or trustee under an assignment made there is not required to comply with Oklahoma statues as to filing, schedule, giving bond, etc., in Oklahoma.
7. A voluntary assignment for benefit of creditors, executed in conformity with the laws of Indian Territory, and valid there, which purports to convey real estate situated in Oklahoma, and which contains all the common-law and statutory requirements to constitute a deed of conveyance in Oklahoma will be sufficient to convey real estate in Oklahoma although it contains provisions which would render it void as a deed of assignment in Oklahoma. And on the principle of comity, such conveyance will be upheld by the courts of Oklahoma as against a nonresident attaching creditor of the assigner; but said assignment would be held void as against a creditor of such assigner residing in Oklahoma.
Appeal from district court, Cleveland county; before Justice H. W Scott.
Action by the Kemper, Hundley & McDonald Dry Goods Company against O. P. Houghton and C. H. Jackson, as surviving partners of the Houghton Mercantile Company, S. L. Williams impleaded as assignee of the Mercantile Company, and from a judgment for plaintiff, he appeals. Reversed.
Involuntary assignments which are made under foreign insolvent laws have no operation outside of the state under whose laws they are made, while a voluntary assignment is a personal common-law right, possessed by every owner of property, unless prohibited by statute, and may operate in other states, as well as in the state where it is executed.
G. M. Miller, for appellant.
J. F. Sharp, for appellee.
On August 1, 1893, the Houghton Mercantile Company, a partnership at Purcell, Ind. T., assigned all their property to S. L. Williams of Purcell in trust for the benefit of their creditors. The deed of trust included and sought to convey two lots in Lexington, Oklahoma, together with the business house of said firm situated thereon. This deed was recorded in the register of deed's office in Cleveland county, Okl. T., the county wherein the real estate in question is situated. On August 3, 1894, the defendant in error, the Kemper, Hundley & McDonald Dry Goods Company, which was a nonresident of Oklahoma and creditor of the Houghton Mercantile Company, began its action in the district court of Cleveland county against O. P. Houghton and C. H. Jackson, as surviving partners of the Houghton Mercantile Company, on a judgment for $604.60, rendered in the United States court at Ardmore, Ind. T., in October, 1893. It procured an order of attachment to issue out of the district court, and the same was levied upon lots 1 and 2, in block 55, of Lexington, Okl. T., the real estate in controversy. The plaintiff in error, Williams, as assignee, by leave of court, filed his inter plea in said cause, and set up the transfer to him by the deed of assignment executed by the Houghton Mercantile Company. Issues were formed, and the cause tried before a referee, who reported the facts and conclusions of law, which were, over the exceptions and objections of plaintiff in error, duly confirmed by the court, and judgment rendered against the plaintiff in error. Motion for new trial was made and overruled, and plaintiff in error appeals.
Two propositions are presented which are decisive of the questions involved: First. Was the deed of assignment sufficient, under our statute, to constitute a deed of conveyance, and to entitle it to be recorded? Second. Can an assignment with preferences, good in the jurisdiction where made, be sustained in Oklahoma, where preferences are prohibited as between nonresident creditors and debtors? A number of other questions are argued by counsel, but we think a proper determination of these propositions will dispose of the case.
It is conceded that the assignment was valid in the Indian Territory; that the assignee duly qualified, gave bond, and was engaged in the execution of said trust; that all the parties were nonresident of Oklahoma, and that the deed of assignment was made out of this territory. The general rule as to the effect of findings of a referee is that they will be treated as special findings, and are taken as conclusive on appeal. This case was submitted on a stipulation between the parties as to certain facts, which agreement appears in the record. This agreement is also conclusive on the parties. Our attention is called to the fact that one finding of the referee is in conflict with the agreed facts. It was agreed in the stipulation "that the said O. P. Houghton and R. A. Houghton, who signed the deed of assignment, constituted the firm of the Houghton Mercantile Company, who owned and controlled the said property in Lexington, Okl. T." The referee finds that on and prior to August 2, 1893, R. A. Houghton, O. P. Houghton, and C. H. Jackson were partners, doing business in Purcell, and owned the lots in question. He further found that R. A. Houghton died after the execution of the deed of assignment, and that O. P. Houghton and C. H. Jackson were surviving partners of the firm, Houghton Mercantile Company. This irregularity should have been corrected in the court below, and, while the plaintiff in error excepted generally to the referee's report, it does not appear that the attention of the court below was ever called to the defect in question. We do not consider the question as essential to a decision of the case. The partners who joined in the deed had power to convey the interest of the firm in the real estate in question, as it appears from the finding that the real estate belonged to the firm. Section 3478, Okl. St. provides: "The property of a partnership consists of all that is contributed to the common stock at the formation of the partnership, and all that is subsequently acquired thereby." Section 3479: "The interest of each member of a partnership extends to every portion of its property." Section 3483: "Property whether real or personal acquired with partnership funds is presumed to be partnership property." Section 3516: "Unless otherwise expressly stipulated, the decision of the majority of the members of a general partnership binds it in the conduct of its business." Under these provisions of statute, even if Jackson was a member of the firm at the time of the assignment, the action of the other two partners in executing the trust deed would bind the firm as to partnership property.
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