Heelan v. Hoagland , 10 Neb. 511 ( 1880 )

Lake, J.

Our decision in this case must turn upon the answer to be given to the question whether the deed of assignment under which Heelan held the property at the time of the levy by the sheriff was a valid instrument as against the creditors of the assignor.

The assignment deals with real and personal property, and must necessarily stand or fall as to both. As to the lands mentioned therein, it is clearly defective as a conveyance, for want of an acknowledgment by the assignor. Section 1, ch. 61, Gen. Stat., 872, provides that: “ Heeds of real estate or of any interest therein, except leases for one year or for a less time, must be signed by the grantor, being of lawful age, in the presence of at least one competent witness, who shall subscribe his name as a witness thereto, and be acknowledged or proved and recorded as directed in this chapter.” Section 46 of the same chapter provides that: “The term ‘deed,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any real estate or interest therein is created, aliened, mortgaged, or assigned,” etc. Section 17 declares that such written instruments “ shall not be deemed lawfully recorded unless they have been previously acknowledged;” and section 2 that: “The grantor must acknowledge the instrument to be his voluntary act and deed.” Erom this it seems clear that the want of-the assignor’s acknowledgment is fatal to both the execution and the record of the instrument under which ITeelan claims the property.

These several provisions are in nowise affected by the act of, Eeb. 19th, 1877, Session Laws, 24, relative “ to voluntary assignments for the benefit of creditors,” save in the matter of recording. As to all the formalities of the conveyance, it is silent, leaving them to be governed by the law as it previously stood. But as to the recording, the seventh section requires this to be done “within thirty days after the execution thereof,” but, if not recorded wfithin that time, the instrument “ shall be considered null and void, as against any of the creditors of the assignor and subsequent bona fide purchasers without notice.”

This instrument, therefore, was not entitled to a place on the records for want of an acknowledgment; and the formal entry of it upon the record book, whether the proper one for deeds of assignment or not, was a nullity, and left the property liable to seizure on execution, at the instance of creditors of the assignor, just the same as if no assignment had been attempted. The defendant in error, when he levied on the property, represented those creditors, and he was entitled to hold and dispose of it for their benefit. "We discover no error in the record, and the judgment of the district court must be affirmed.

Judgment aeeirmed.