Winn v. Madden , 18 Mo. App. 261 ( 1885 )

Opinion by

Ellison, J.

This is an action of replevin, plaintiff claiming under an assignment, and defendant, as constable, under an execution. The evidence shows that Saunders & Harman made an assignment in good faith to plaintiff, on October 18, 1881, by deed duly acknowledged; plaintiff accepting the trust by joining in the deed and by taking exclusive possession of the store and stock, locking it up for several days while taking an inventory, and posting a written notice on the store door. That he executed his bond on October 25,1881, and filed his deed of assignment on October 26, 1881, at 5 o’clock p. m.

The evidence further shows defendant to be a constable who levied upon the goods on the afternoon of the 26th, a few hours before thé deed of assignment was filed for record. That this execution was issued on a judgment against Saunders & Harman, rendered by a justice of the peace on the day before the levy. That the attorney for the plaintiff in the execution knew of the assignment and had read the deed before obtaining the judgment.

The principal question here is, whether the title vested in the assignee prior to the filing the deed for record, giving bond, making inventory, etc. We are of the opinion it did. The requirement to file the deed for record is in about the same language as is the statute in case of ordinary deeds to land.

In the latter case the deed, though unrecorded, is good, against parties with notice of its existence. Here, though the levy was prior to the filing, yet, the deed of assignment was delivered before the execution was issued, and the plaintiffs in that execution were fully advised of the deed and of all which had occurred under it.

The neglect of the assignee to comply with the provisions of the assignment law ought not to affect the creditors under the assignment. Hardcastle v. Fisher, 24 Mo. 70.

The authorities cited by appellant which hold that the provisions of the statute shall be complied with, before the assignment takes effect, are controlled by statutes making that requirement. Clayton v. Johnson (36 Arkansas 406), is a well considered case, and though the. statute of that state requires inventories, descriptions, bonds, etc., to be made and filed “before the assignee thereof shall be entitled to take possession, sell, or in any way manage or control any property,” yet the court in that case holds, “the filing of the schedule and giving bond by the assignee, as required by the statute, are conditions subsequent and not precedent to the vesting of the title to the property in him. It vests in him on the execution and delivery of the deed by the assignor, and can not be defeated by an execution against the assignor coming to the hands of an officer, after the delivery of the deed, and before the filing of the schedule and bond in the probate court; and if the ■officer levy such execution on the goods, the assignee may, after filing the schedule and bond, maintain replevin against him for the goods.”

Under an Iowa statute, allowing twenty days after the assignment in which to give bond, an execution was levied after the assignment and before the bond, it was held the assignee could maintain replevin against the sheriff. Price v. Parker, 11 Iowa 144.

The failure of the trustee to take the oath required by statute will not invalidate the assignment in Indiana. Wright v. Thomas, 1 Fed. Rep. 716.

Even conceding section 2505, Revised Statutes, 1879, as to fraudulent conveyances, applies to assignments, which we do not believe, the evidence shows sufficient change of possession under that statute. The mere fact of afterwards hiring one of the assignors to assist in sales “where the whole law has been complied with, there is nothing to prevent the employment of the vendor to render services in and about the property in the same manner as any other agent or employe.” Claflin v. Rosenberg, 42 Mo. 450. There were some other exceptions, an examination of which shows not to be tenable.

The judgment is affirmed.

The others concur.