Bloomingdale v. Weil , 1902 Wash. LEXIS 622 ( 1902 )

The opinion of the court was delivered by

White, J.

The- foregoing cases were consolidated. They involved the same questions, arising from- the same state of facts. The respondent claims to be the owner of certain real estate in Spokane county by virtue of a voluntary assignment madeby insolvent debtors in New York for thebenefitoftheircreditors. The plaintiff alleges in the. complaint the assignment and the terms thereof, and that the defendants were citizens of Massachusetts at all times, and that the assignments were made under the provisions of and in compliance with the statutes of the state of Mew York providing for voluntary assignment by debtors. The provisions of the Mew York statute are sel?out. The bringing of the suit by the defendants hereinafter mentioned in the findings of fact is also alleged. The plaintiff prayed for a judgment and decree of the court,; that the court decree that the defendants take no right, title, or interest in, and acquire no lien upon, the realty described, by virtue of the writs of attachment issued in the suits instituted by the defendants and the judgments recovered in said suits; and, further, that the levy of said writs of attachment and judgments were apparent liens and cast a cloud upon plaintiff’s title to the land, and he prayed for a decree of the court that such apparent lien should be removed, and the title to the land quieted in the plaintiff, and that the plaintiff should have such other and further relief as should seem meet and equitable. The court rendered a decree; on the findings hereinafter set out, that the plaintiff, as assignee of the partnership! property of the copartnership of M. A. & D. Battman, etc., was the owner of the land described in the findings under and by virtue of the deeds of assignments in the findings mentioned, and that the judgments and attachments referred to in the finding’s in no way affect the title acquired by the plaintiff as assignee, and the court decreed and declared that the title to said land, was, free and discharged from any apparent cloud by virtue of such attachment proceedings, etc., and that the plaintiff’s title acquired by the assignments was a valid and superior title to the appellants, etc. The findings of fact were as follows:

“1. That at all times herein mentioned the defendant Weil, was, and now is, a citizen and resident of the state of Massachusetts, and during the same period, the defendant, the Security Safe Deposit & Trust Company, was, and now is, a corporation created under the laws of the state of Massachusetts, with its principal office and place of business in the town of Lynn in said state, and-is a corporation of said state.

“2. That prior to March 5, 1898, one David Bettman, a resident and citizen of the state of New York, held title to certain realty situate within the county of Spokane, state of Washington, more particularly described as follows: (Here follows a long list of real property). The title to the realty hereinbefore described, though standing in the name of David Bettman, was; in fact, the property of a co-partnership, known as M. A. and D. Bettman, of which said David Bettman'was a member.

“3. That on March 5, 1898, and for some time prior thereto; said David Bettman, was a member of a eo-partnership' doing business in the city, county and state of New York, under the him name of Stettheimer & Bettman, Henrietta B. Stettheimer being the other member of said co-partnership-. During the same period, said David Bettman was a member of a co-partnership of M. A. and David Bettman, hereinbefore referred to; said co-partnership being engáged in business likewise in the city, county and state of New York, the other member thereof being Marcus A. Bettman.

“4. That on the 5th day of March, 1898, in the said county and state of New York, Marcus A. Bettman and David Bettman, as co-partners and individually, executed, acknowledged and delivered to plaintiff an assignment of all their estate, real and personal, of whatsoever description and wheresoever situate, upon conditions therein stated. This assignment recited, that whereas said Marcus A. Bettman and David Bettman, as partners and individuals, were justly indebted to- sundry persons in divers and sundry sums of money, and., being unable to pay the same in full, were desirous of making an equitable distribution of their property and effects among their creditors, that they therefore granted, bargained, sold, assigned, and delivered over to plaintiff, his successors and assigns, all and singular the estate and property, real and personal, of every kind and nature, and wheresoever the same might he found, of the said Marcus A. and David Bettman; hut in trust for these purposes: That plaintiff, as such assignee^ and in trust for the purposes hereinafter specified, should take possession of all the estate, property and effects by said instrument assigned, transferred, and conveyed, and sell and dispose of the same, convert, it into' money, collect all sums of money due and owing to' the said first parties, and out of such proceeds to pay the costs, charges and expenses of carrying into effect the assignment, including a lawful commission to the assignee; to pay all wages and salaries owing to1 Ihe employees of said Marcus A. and David Bettman ; from the proceeds of the partnership property to pay to the creditors of the partnership' such sums as might bei owing them, and with the residue of the proceeds, if any should remain after paying the partnership debts, to pay and discharge the private and individual debts of the said Marcus A. and David Bettman. Of the separate and individual property of said Marcus A. and David Bettman, so assigned to this plaintiff as assignee1, it was directed that after paying the expenses of the assignment, and all wages and salaries owing to> the employees of the individual members of said partnership, the assignee should apply the proceeds of the separate estate of each of said partners to the payment of their individual debts, and providing that, in case the individual property and estate should he more than sufficient to> pay the respective individual debto and liabilities of said partners, in such event the surplus remaining was to- he applied to the payment and liquid atiou of the partnership debts, or of any balance which might remain, unpaid after applying thereto* the proceeds of the partnership- property. To* the furtherance of this assignment this plaintiff was constituted the true and lawful attorney of the. said co-partnership and of the individual members thereof, with full power and authority to> do all acts and things necessary to* the full execution of the trust thereby created. At the same time and place the eopartnership of Stefc:heimer & Bettman, composed of the said David Bettman and the said Henrietta B. Stettheimer, executed, acknowledged and delivered a like assignment to plaintiff, whereby their real and personal property oí every kind and nature was sold, assigned, transferred and set over unto- plaintiff, and whereby likewise the individual property of each of said co-partners was sold, assigned, transferred and set over unto plaintiff. This assignment was in all respects like unto the first assignment hereinbefore referred to, and their estate Avas conveyed to plaintiff for the same trusts, both as to the partnership and the indi-vidual property. Plaintiff, in writing, and by the same agreement, whereby said trusts, were created, accepted each and every trust created by each and every assignment herednhefo re referred to, gave bond as required by law, and at oncei entered upon the discharge of the duties of the trusts so, created; and said assignments were, on March 5, 1898, recorded in the office of the clerk of the county of New York and of the supreme court of said state in said county, and certified copies were thereafter, and on March 11, 1898, recorded in the office of the county auditor of Spokane county, state, of Washington.

“5. That said assignments were made under the provisions of and in compliance with a statute of the slate oí New York, providing for voluntary assignments by debtors for the benefit of eheir creditors. The material portions of said laAv are set forth in the amended complaints, in these actions, and reference is made to, said complaints for their contents for the purpose of brevity in these findings, and to avoid setting them forth in full herein.

“6. That on or about the 22d day of April, 1898, the defendant, the Security Safe Deposit & Trust Company, commenced an action in the superior court of Spokane county, state of Washington, wherein it Avas plaintiff, and David Bettman, Henrietta B. Stettheimer and Marcus A. Bettman were defenc.ants. The cause of action alleged in said complaint was one upon a promissory note executed by the co-partnership» of Stettheimer & Bettman, payable to themeslves, and indorsed, before delivery, by the co-partnership of Stettheimer & Bettman and of Marcus A. Bettman and David Bettman, and thereafter delivered by said co-partnerships to- one- Charles Weil, and by him, before maturity, assigned to' the Security Safe Deposit & Trust Company. Upon the commencement of said action the said Security Safe Deposit & Trust Company filed, in the. office of the clerk of the superior court of Spokane county, an affidavit and a bond for the procurement of the issuance of a writ of attachment therefrom, and thereupon the said clerk of the said superior court did issue a writ of attachment against the property of the defendants named in said action, and it was thereupon delivered to the sheriff of Spokane- county and he, acting under the authority of said writ of attachment, did levy, on the sama day, upon the real property hereinbefore described as the property of David Bettman. That thereafter, and on, towit, the 22d day of July, 1898, said court in said cause rendered judgment against said David Bettman in the sum of five thousand dollars with interest thereon at the rate of seven p,er cent, per annum from March 16, 1898; and plaintiff in said cause thereupon filed the said judgment with the clerk of said court.

“7. That on or about the 9th day of March, 1898, the defendant, Charles Weil, commenced an action in the superior court of Spokane county, state of Washington, wherein he was named as plaintiff, and Henrietta B. Stettheimer, Marcus A. Bettman and David" Bettman were named as defendants. The cause of action stated in said complaint was to recover upon two- promissory notes executed in October, 1897, and February, 1898, respectively, by the co-partnership- of Stettheimer & Bettman, payable to themselves and. indorsed upon the back, before the delivery thereof, by the co-partnership- of Stettheimer & Bettnian and of Marcus A. Bettman and David Bettman, and thereafter delivered to the plaintiff therein. At the time o-f the commencement -of said action the said plaintiff caused to- be filed, in the office of the clerk of said superior court, an affidavit and bond for1 the procurement of the issuance, of a writ of attachment therefrom, and thereupon the said clerk o-f the- said superior court did issue a writ of attachment ag’ainst the property of the defendants named in said action, and the same was thereupon def livered to the sheriff of Spokane county, and under and in pursuance of said writ of attachment he levied upon, on the same day, the real property hereinbefore described, as the property of .David Bettman. That thereafter, and on, towit, the 22d day of July, 1898, said court in said cause rendered judgment against said David Bettman in the sum of ten thousand ($10,000) dollars, with interest on five thousand ($5,000) dollars from October 9, 1898, at the rate of seven per cent, per annum, and interest on five thousand (5,000) dollars, from March 1, 1898, at the rate of seven per cent, per annum, and costs of suit taxed at twenty-four ($24) dollars; and plaintiff thereupon filed the said judgment with the clerk of said court.

“8. That on or about the 22d day of April, 1898, the defendant Charles Weil, commenced an action in "the superior court of Spokane county, state of Washington, wherein he was named as plaintiff and Henrietta B. Stettheimer, David Bettman and Marcus A. Bettman were named as defendants. The cause of action alleged in said complaint was upon a promissory note executed by the firm of Stettheimer & Bettman in February, 1898, payable to themselves and indorsed on the back thereof, before delivery, by the co-partnerships of Stettheimer & Bettman and Marcus A. & David Bettman, and thereafter by them delivered to> the plaintiff therein named. Upon the commencement c-f said action, and upon the same day, an affidavit for a writ of attachment and a bond were filed in said superior court by said Weil, and a writ of attachment was issued by the clerk of said superior court delivered to1 the sheriff of Spokane county, who thereupon levied upon the real property hereinbefore described and referred to, and said levy is still of force and effect. That thereafter, and on, towit, tbe 22d day of July, 1898, the said court in said cause rendered judgment against the said David Bettman in the sum of five thousand ($5,000) dollars and interest thereon at the rate of seven per cent, per annum from February 5, 1898, and costs taxed at twenty-four ($24) dollars, and plaintiff thereupon filed the same with the clerk of said court.

“9. That in the several- proceedings heretofore referred to had and taken by the defendants respectively against the assignors of the plaintiff, executions, have been issued upon the judgments so rendered, and sales of the realty herein described were made, wherein the defendants respectively became the apparent owners of the pieces and parcels of property herein described. That such proceedings, and the whole of them, created an apparent lien upon the title to these lands, and east a cloud upon the plaintiff’s title, whereby the same is unmarketable.”

There were two. deeds of assignments, to the respondent offered and received in evidence, — one from David Bettman and Henrietta B. Stettheimer, and one. from Marcus A. Bettman and David Bettman. The evidence, we think, fully sustains the second findings of fact of the court touching the title to the real property in controversy. We are therefore concerned only with the assignment of Marcus A. and David Bettman. This assignment recites, that the Bettmans are desirous of making an equitable distribution of their property and effects among their creditors. Therefore, in consideration of the premises and one1 dollar, they do grant, bargain, sell, and assign and deliver over and convey unto, the parties of the second part (the assignee) his successors and assigns, all and singular the estate and property, real and personal, of every kind and nature, and wherever the same may be, of the party (Beffi mans) of the first part, which is held or owned by them as a copartnership or as individuals. The assignee is to take possession of the same, to- sell and dispose of the- same, and to distribute the proceeds among the creditors pro rata, as set out in the deed, and as required by the laws of the state of Mew York. This deed of assignment was signed by Marcus A. Bettman, David Bettman, and Emanuel W. Bloomingdale. The certificate of acknowledgment to it is as follows:

“State of New York, City and County of New York, ss.

On the- 5th day of March, in the year one thousand eight hundred and ninety eight, before me personally came Marcus A. Bettman, David Bettman, and Emanuel W. Bloomingdale, to me known, and known to me to he the individuals described in aad who- executed the foregoing instrument, and severally acknowledged to me that they executed the same for the purposes therein mentioned.

Moses J. Shteudaira, Notary Public, N. Y. Co.”

This deed of assignment was made on March 5, 1898, in New York. On March 9 and April 22, 1898, die property affected by this action and mentioned in the second finding of fact was attached and sold as set forth in the 6th, 7 th, and 8th fir dings of fact. The respondent offered in evidence1 on the trial of this cause a copy of this assignment, certified to by the clerk of the county and supreme court of New Y ork, and in whose office the original was recorded on March 5, 1898. This copy was also recorded in the auditor’s office of Spokane county on March 11, 1898. Objection by the appellant was made to receiving the deed of assignment in evidence, among other things, on the ground that it did not show title in the plaintiff in this action, and could not pass title to- any property within the state of Washington, and especially real property. At the close of the testimony the appellants moved the court to dismiss, the action on the ground that it did not appear from the proof that the plaintiff had any right, title, or1 interest to the property or any portion thereof described in the complaint, or that he had any standing in court by virtue of any purported instrument of assignment ■which would enable him to bring this suit to remove a cloud; that there was nothing in the evidence to show that a general assignment had been executed. It was further objected that there was no seal attached to the notary’s certificate of acknowledgment, and no. certificate of a. clerk of a court of record to the signature of the; notary, etc. The court denied the motion, and an exception was taken. The appellants, as we understand from the brief, do- not now urge any objection to this- deed of assignment on the ground that it is not the original, but. a copy. They urge in their brief that the notarial seal was not affixed to the acknowledgment in the original, and that there was no ■ certificate of a court of record that the notary public pretending to- take the acknowledgment was duly authorized, etc. There are other objections, but they refer to the Betrman and Stettheimer assignment-, and, as we view the findings and the evidence, are immaterial, because- the assignee-, if owner of the property in controversy, is so- by virtue of the Marcus A. and David Beftman deed of assignment.

The respondent moves to dismiss- the- appeal because no bond on appeal has been given. The bond found in the record is in the penalty of $200, conditioned to pay all costs and damages which may be awarded against the appellant on appeal or on the dismissal thereof. The bond purports on its face to have been made by the appellants and one Samuel Glasgow as surety. It is joint and several in form. The surety alone signs the bond. The notice of appeal and bond were filed December 2, 1901. The- respondent may move this court to dismiss the appeal Avhe-n the appeal bond is not in form or substance such as to render the appeal effectual. Laws 1893, § 18, p'. 129 ; § 6517, Ballinger’s Code. Upon the taking of an appeal by notice, and the filing of a bond to render the appeal effectual, the supreme court acquires jurisdiction of the appeal. Laws 1893, § 16, p. 128; § 6515, Ballinger’s Code. The appeal bond must be executed in behalf of the appellant by one or more sufficient- sureties. Laws 1893, § 7, p-. 122; § 6506, Ballinger’s Code. The supreme court on the hearing of the motion to dismiss an appeal may allow all amendments in matters of form curative of defects in proceedings, to- the aid that substantial justice be secured to the parties, and no appeal shall he dismissed for any informality or defect in the notice of appeal, the appeal bond, etc., if the appellant shall forthwith, upon o-rder of the supreme court, perfect the appeal. Laws 1899, p-. 79. Under the last act the defect in the bond could be remedied by permitting' the principal to now execute it, and the appeal should not he dismissed on account of this defect, but we should now allow the execution of the bond by the principal. De Roberts v. Stiles, 24 Wash. 612 (64 Pac. 795). In Pennsylvania Mtge. Inv. Co. v. Gilbert, 18 Wash. 667 (52 Pac. 246), in p-assing upon a similar question, we said:

“It was also: contended that the bond was insufficient because it was not signed by two of the appellants in person, but that their names were affixed thereto- by their attorney without special authority. We think this was sufficient, as the appellants would have been liable for the costs in any event, and the attorney had authority to appeal the case.”

The respondent contends that the surety has the right to prescribe the terms upon which he will he hound; that he could execute a several bond in behalf of the appellant and he hound thereby. But where the bond shows that he only intended to be surety upon 'a joint and several bond, which should be executed by the appellant as well as himself, hei can be bound by no- other kind of an instrument, and as the appellant had not signed this instrument the surety is not hound, and consequently there is no bond in this case. The bond on its face purports to- he the bond of the appellants and the surety. It was filed by the attorney for the appellants as and for their bond, when he gave notice of the appeal. It is no¡ more, than an ordinary cost, bond. The appellants are liable in any event for the costs. It was executed on behalf of the appellants, and filed by them as their bond. Under the circumstances they are estopped from denying' that it, is their bond. We think the bond is sufficient, and the motion is denied.

The principle mainly contended for by the appellant is that a foreign creditor coming into this jurisdiction to enforce his demands in our courts against real estate of a foreign debtor should be accorded the same rights as are given to local creditors, especially in a cause where the contest is clearly between a foreign assignee of such debtor and the creditors who are seeking their remedy in this forum, no local creditors appearing to have any prior claim or interest in the property the title to which is in question.

We have held that an assignment for the benefit of creditors, which so> far as it appears was executed with the necessary formalities of a deed for the conveyance of real estate, made in another state in accordance with its statutes and which was recorded in the proper county in such state, and in the office of the auditor of the county in this state in which the land was situated, while passing title to the assignor’s realty in this state, does so subject to the right of creditors residing in this state to enforce claims against the assignor by suit and attachment against his property in this state. Happy v. Prickett, 24 Wash. 290 (64 Pac. 528). The assignment under consideration was made on motion of the debtors themselves. We have held that an assignment made on motion of the debtor himself for the benefit of creditors by a debtor in Minnesota, of all his property, wherever situated, under the provisions of the insolvency law of Minnesota, would pass the personal property of the debtor in the state of Washington, and that it was a voluntary assignment. Whitman v. Mast, 11 Wash. 318 (39 Pac. 649, 48 Am. St, Rep. 874). Thei supreme court, of the United States has held in one of the cases cited by the appellant that:

“The. operation of voluntary or common-law assignments upon property situated in other states has been the subject of frequent discussion in the courts, and there is a general consensus of opinion to the effect that such assignments will be respected, except so far as they come in conflict with the rights of local creditors, or with the laws or public policy of the state in which the assignment is sought to. be enforced. The cases in this court are not numerous, but they are all consonant with the above general principle. Black v. Zacharie, 3 How. 483; Livermore v. Jenckes, 21 How. 126; Green v. Van Buskirk, 5 Wall. 307; Hervey v. R. I. Locomotive Works, 93 U. S. 644; Cole v. Cunningham, 133 U. S. 107; Barnett v. Kinney, 147 U. S. 476. ’’ Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624 (19 Sup. Ct. 545).

The appellants in support of their position cite us to Security Trust Co. v. Dodd, Mead & Co., supra; Warner v. Jaffray, 96 N. Y. 248 (48 Am. Rep. 616); Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477 (8 L. R. A. 62, 24 N. E. 250, 18 Am. St. Rep, 338); Jenks v. Ludden, 34 Minn. 482 (27 N. W. 188); King v. Cross, 175 U. S. 396 (20 Sup. Ct. 131); Proctor v. Bank, 152 Mass. 223 (9 L. R. A. 122, 25 N. E. 81); Hibernia National Bank v. Lacombe, 84 N. Y. 367 (38 Am. Rep. 518); Barth v. Backus, 140 N. Y. 230 (35 N. E. 425, 23 L. R. A. 47, 37 Am. St. Rep. 545); Cole v. Cunningham, 133 U. S. 107 (10 Sup. Ct. 269); Paine v. Lester, 44 Conn. 196 (26 Am. St. Rep. 442); Kidder v. Tufts, 48 N. H. 121; Sturtevant v. Armsby Co., 66 N. H. 557 (23 Atl. 368, 49 Am. St. Rep. 627). In Warner v. Jaffray it was held, that the rule that a voluntary transfer of personal property is to- be governed by the laws of the owner’s domicile is not of universal application, but yields when the laws and policy of the state where- the property is located have prescribed a different rule of transfer. In short, it ivas held that the assignment in question was in conflict with the laws and public policy of the state of Pennsylvania, where the property was seized, it not having been recorded so as to transfer personal property, as required by the laws of Pennsylvania. Catlin v. Wilcox Silver-Plate Co., supra, involved a question of the conflicting rights of a receiver appointed by a foreign court and an attaching creditor in a domestic court to certain personal property. It was- not a, case of a voluntary assignment, such as the one in the- case at bar, but of an involuntary assignment, and the court places its decision squarely upon the ground that the former will be recognized in a, foreign court, but the latter will not be, saying:

“Property in a foreign state that has passed from an assignor to an assignee by a voluntary deed, and not by proceedings in invitwn by process of law, is, distinguished from like property in the hands of a receiver by operation of law, or by an assignment made under legal compulsion. Assignments of the latter class are held inoperative upon property not situate within the territory over wliicJi the law's that make or compel the debtor to- make them have dominion.”

It is true-, however, that the court, in its, opinion cites with apparent approval Paine v. Lester, 44 Conn. 196 (20 Am. Rep. 442), and says:

“As has in effect, been said, courts are prepared to extend comity where, there is no- reason to the contrary; especially if there is no- interest of their own citizens, or of the citizens of another state, w’lio are asking the protection of their laws, injuriously affected by such recognition.”

The following is thei syllabus in Jenks v. Ludden, supra, and -expresses what is determined by the court:

“The copartnership, of Walker, Judd & Veazie, citizens of Minnesota, being indebted to residents of this state in the sum of $150,000, and the further sum of $40,000 to non-residents, including $10,000 to citizens of Wisconsin, executed, pursuant to Chapter 148, Laws 1881, and known as the ‘Insolvent Law,’ an assignment of all their firm property, of which real estate worth $60,000 was situated in Wisconsin. Prior to the execution of this assignment the defendant, also- a citizen of this state, a creditor of the firm, hac. acquired an attachment lien upon the' Wisconsin real estate. Other creditors, citizens of Wisconsin, had also, prior to the assignment, acquired attachment liens on the same property. Defendant has never become a party to the assignment, nor participated in its benefits. Our ‘insolvent law’ is essentially different from the statute of Wisconsin regulating assignments for the benefit of creditors, and in some respects directly in conflict with it. Held, first, that, the courts of this state have no right to enjoin defendant from enforcing his attachment lien on the real property in Wisconsin, although the-execution of the assignment might, under our statute, have dissolved such an attachment in this state; second, that, even if they had the power to do so, they ought not, in the use of a sound discretion, to exercise it in this case; where the only effect might be to enable non-resident creditorsi to- step ir. and appropriate the attached property.”

It will be seen that one of the grounds for upholding the attachment- was that the effect might be to enable nonresident creditors to step in and appropriate the attached, property, to- the injury of the Minnesota creditor. In this respect the case is governed by the principle announced by us in Happy v. Prickett, supra. King v. Cross, supra, involved the question whether an assignment made in Massachusetts under an insolvent law, not so completed as to divest the assignor of his control over the property, ■would pass title to- property in Khode Island, as against a citizen of Khode Island. The court held it would not, because the assignment was not perfected so as to divest the assignor of his. title until after the- attachment was made, and because the assignment was involuntary, and such insolvency proceedings did not have extra-territorial •operation, and because it was sought to recognize a foreign law to the prejudice of a domestic creditor. Proctor v. Bank, supra, was this case: A Massachusetts, bank had sued a Massachusetts firm in the state of Ohio-, and garnished certain debts owing to the firm there. Learning that the firm was about to make an assignment for’ the benefit of creditors, it sold its claims to- a Mew York bank, passing all its interests to that bank. The assignee sued the Massachusetts bank, in the Massachusetts courts, t,o enjoin the prosecution of the Ohio- suit. The relief was denied solely upon the ground that the sale, though made with intent to- defeat the operation of the assignment, •which intent was known to the Mew York bank, was yet-an absolute sale, by which the defendant had parted with all its interest in the claim, and therefore no- longer had any control over the Ohio- litigation. ■ The court, of course, had no- jurisdiction, and could acquire none^ over the Mew York corporation. As to Cole v. Cunningham, supra, the supreme court, in Barnett v. Kinney, 147 U. S. 476 (13 Sup. Ct. 403), treat it as. supporting the proposition that a foreign assignment, may, and properly should, receive recognition as against foreign creditors, but denied effect as against local creditors, the court- saying:

“Great contrariety of state decision -exists upon this general topic, and it may bo fairly stated that, as between citizens of the state of the forum, and the assignee appointed under the laws of another state, the claim of the former will be held superior to' that of the latter by the courts of the former; while, as between the assignee and citizens of his own state and the state of the debtor, the laws of such state will ordinarily be applied in the state of the litigation, unless forbidden by, or inconsistent with, the laws or policy of the latter.”

We have already referred to what was held hv the supreme court of the United States in the case of Security Trust Company v. Dodd, Mead & Co., supra. In Barnett v. Kinney, 147 U. S. 476 (13 Sup. Ct. 403), the point.made by the appellants that it would violare the constitution of the United States to deprive them of the rights acquired under the attachment, and which point is decided in favor of the contention of the appellant in Sturtevant v. Armsby Co., supra, was passed upon. In Barnett v. Kinney, a citizen of Utah, who owned some property in Idaho, executed and delivered, in Utah, an assignment for the benefit of his creditors. Thereafter the property in Idaho was attached a.t the suit of Minnesota and Nebraska creditors. The territorial supreme court sustained the attachments, holding that the Utah assignment, was invalid so far as related to- property in Idaho. And in arriving at this conclusion the court said that, in considering the effect of the assignment, no other principle could be applied where a non-resident of the territory was challenging its operation than there could ho where it was. contested by a citizen of the territory, for that would be to withhold from the non-resident suitor privileges and immunities granted to its own citizens. Barnett v. Kinney, 2 Idaho, 706 (23 Pac. 922). The cause was appealed to the supreme court, of the United States. The appellools counsel contended before that court that “There can be no distinction in administering the law, and no preference can he given or right denied to 1lic* citizen of one state over the citizen of another state or territory of the1 United States;” citing and relying-, among other authorities, upon Paine v. Lester, 44 Conn. 197 (26 Am. Rep. 442), and Hibernia National Bank v. Lacombe, 84 N. Y. 367 (38 Am. Rep. 518), the two cases which were cited in Sturtevant v. Armsby Co., supra. The supreme court having stated the. ruling of the territorial court, and overruled objections as to the effect of the assignment in other particulars, took up the objection, as stated by the supreme court, “that a nonresident could not make an assignment, with preferences, of personal property situated in Idaho, that would be valid as against a nonresident attaching creditor, the latter being entitled to ihe same rights as a, citizen of Idaho.” On this subject the court, said:

“No just rule required the courts of Idaho; at the instance of a citizen of another1 state; to. adjudge a transfer, valid at common law' and by the law of the place where it was made», to be invalid, because preferring creditors else>where, and, therefore; in contravention of the- Idaho statute and th© public policy therein indicated in respect- of its own citizens, proceeding thereunder. The law of the situs was not incompatible, wdtli the law of the domicil.”

The supreme court then cited and approved several decisions hearing upon this subject, the first of which is Halsted v. Straus, 32 Fed. 279. Considering the effect of a Yew York assignment to pass- title to property in New Jersey, as against foreign attaching creditors- in the latter state; it was there said:

“The execution of .foreign assignments in Yew Jersey will be enforced by its courts as a matter of comity, except when it would injure its own citizens; then it will not. If 1 leering, Milliken & Co. were, a Yew Jersey firm, they could successfully resist the execution of the assignment in this case”

Bentley v. Whittemore, 19 N. J. Eq. 462 (97 Am. Dec. 671), was cited and followed in Halsted v. Straus. In that case the court of errors and appeals of New Jersey considered the question whether an assignment made under the laws of New York, which conflict in substantial particulars with the New Jersey laws upon that subject, would operate to pass title to real property in New Jersey, as against foreign creditors. The conclusion reached was summed- up> in these words:

“The true rule of law and public policy is this: that a voluntary assignment made abroad, inconsistent, in substantial respects, with our statute, should not be put in execution here to- the detriment of our citizens, but that, for all other purposes, if valid by the lex loci, it should be carried fully into- effect.”

May v. First National Bank, 122 Ill. 551 (13 N. E. 806), is next referred to and quoted from. There: an assignment made in New York was held to convey real property in Illinois as agair.st a Massachusetts creditor. In that case protection to a foreign creditor was again claimed under the “privilege and immunity” clause of the Eedea*al constitution, and again Paine v. Lester and Hibernia National Bank v. Lacombe were cited in support of- the claim. The court said:,

“But in the broad extent that in no case: should a court hold to a distinction, in pursuing legal remedies, between citizens of its own state and those of another, we are not ready to yield assent thereto. It is not a proposition warranted by the authorities. . . . An assignment giving preferences, though made without the state, might, as against creditors residing in this state, with some reason, be claimed to' be invalid, as being against the policy of t-hei statute in respect of domestic creditors, — that it was the policy of the law that there: should be an equal distribution with respect to them. But as the statute has no application to assignments made without the state, we do no- see that there is any policy of the law which can be said to exist with respect to, such assignments, or with respect to- foreign creditors, and why non-residents are not left free to execute voluntary assignments, with or without preferences, among foreign creditors, as they may see fit, so long as domestic creditors are not affected thereby, without objection lying to such assignments that they are against the policy of our law. The statute was not made for the regulation of foreign assignments, or for the distribution, under such assignments, of a debtor’s property among foreign creditors.”

Frank v. Bobbitt, 155 Mass. 112 (29 N. E. 209), was commented upon as follows:

“In Frank v. Bobbitt, 155 Mass. 112, a voluntary assignment made in Rorth Carolina and valid there, was held valid and enforced in Massachusetts as against a subsequent attaching creditor of the assignors, resident in still another state-, and not a party to the assignment. The supreme judicial court observed that the assignment was a voluntary and not a statutory one; that the attaching creditors were- not resident in Massachusetts; that at common law in that state an assignment for the benefit of creditors which created preferences was not void for that reason; and that there was no- statute which rendered invalid such an assignment when made by parties living in another state, and affecting property in Massachusetts, citing Train v. Kendall, 137 Mass. 366. Referring to the general rule that a contract, valid by the law of the place where made, would be regarded as valid elsewhere, and stating that 'it is not necessary to- inquire.whether this rule rests on the comity which prevails between different states and countries, or is a recognition of the general right which every one has to- dispose of his property or to- contract, concerning it as he chooses,’ the court said that the only qualification annexed to voluntary assignments made by the debtors living in another state had been 'that this court would not sustain them if to do- so- would be prejudicial to the interests of o-ur own citizens, or opposed to public policy.’ And added: 'As to- the claim of the plaintiffs that they should stand as well as if they were citizens of this state, it mayhesaid, in the first place, that the qualification attached to foreign assignments is in favor of our own citizens as such, and in the next placo, that, tlie assignment being valid by the law of the place whore it. 'was made-, and not adverse to the interests cf our citizens nor opposed to public policy, no cause appears for pronouncing' it invalid.’ ” ' '

The supreme court held that the Utah assignment, operated to pass title to- property in Idaho as against nonresidents of Idaho-, and reversed the judgment of the. territorial court. Paine v. Lester, 44 Conn., supra, was decided on the same grounds as Sturtevant v. Armsby Co. The ease of the Hibernia National Bank v. Lacombe, supra, supports the contention of the appellants. We think, however, tlia:: the supreme court of the. United States and the cases referred to in the case of Barnett v. Kinney is in op-posidon to the contention made by the appellants, and lays down a better rule, and that foreign creditors should not be accorded the same rights as local creditors simply because they have availed themselves of the process of the courts of our state- to- seize the. property of the insolvent within the state. We do- not think that there is any substantial difference between the assignments of real and personal property, and we so intimate in Happy v. Prickett, supra. The rights of local creditors prevail against foreign assignments, and in addition, as said in Security Trust Company v. Dodd, Mead & Co., supra, such assignments must not conflict with the laws or public policy of the state- in which the assignment is sought to be enforced. If it does- it is a. good reason for refusing to extend tlie comity of the state in favor of such conveyance. This is conceded by the respondent in his comment upon the. case of Warren v. Jaffray.

Does the deed of assignment in this case, under the laws of this state, convey the interest of the debtor in the real estate in controversy? Does the absence of the notarial seal to the certificate of acknowledgment render the assignment of no effect as. a. conveyance of real estate in this state? The laws of Yew York hearing upon this subject, which were introduced in evidence, simply provide that the assignment- shall he acknowledged, hut prescribe nothing as to the form of acknowledgment or as to whether it should he under seal. Yo seal need he attached to- an acknowledgment unless the statute specifically provides for it. The statutes of this state require a notary when he signs any instrument officially, except an oath, 1o he- used in any court of this state, to affix his official seal. § 249, .Ballinger’s Code-. A certificate of acknowledgment must ha substantially in the form prescribed by § 4533, Ballinger’s Code. The form of the certificate to the assignment, in question is substantially the same required by this section, wfith 'the exception, the words or equivalent words, “Given under my hand and official seal,” are not in the certificate.

“Deeds or conveyances of lands, or of any estate or interest- therein situated in this state, may he executed or acknowledged in any other state or territory of the United States in the form prescribed for executing and acknowledging deeds within this state, and the execution thereof may he acknowledged before any person authorized to take acknowledgments of deeds by the laws, of the state1 or territory wherein the acknowledgment is taken, or before any commissioner appointed by the governor of this state for such purpose.” § 4527, Ballinger’s Code.

“In the casei provided for in the. preceding section, unless the acknowledgment he taken before, a commissioner appointed by the governor of this state for that purpose, or hv the clerk of the court of record of said state or ter-i ritory, or by a notary public or other officer having1 a seal of office, then such deed shall have attached thereto a certificate of the clerk of the court of record, under the seal of said county or district, or a certificate of any other proper certifying officer of said district or county, within which said acknowledgment was taken, that thei person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he therein represents himself to be, that he is authorized by law to take acknowledgments of deeds, and that he verily believes the signature of the person subscribed thereto' to be genuine.” § 4528, Ballinger’s Code.

It is claimed that as there, is no official seal of the notary, and no certificate of a clerk of a court of record that the notary has no seal and was a notary, and of the genuineness of the signature of the notary, as required in § 4528, supra, that, therefore, there is not such an acknowledgment as required by our laws. The deed of assignment has been properly acknowledged, but there is a defective certification of thas acknowledgment. The fact that an instrument is defectively acknowledged, or that the certificate of acknowledgment is defectively certified, will not affect its operative force, at least in equity, as against the grantor or one who is not a bona fide purchaser. Real estate of a partnership, in equity is regarded as personal estate, so far as the payment of debts. State ex rel. Bogey v. Neal, ante, p. 391 (69 Pac. 1103). Under our statutes an action to quiet title may be maintained by one having merely an equitable title. Jackson v. Tatebo, 3 Wash. 456 (28 Pac. 916). In such a suit equity has power to grant relief as the facts in the case require. Jackson v. Tatebo, supra; Dormitzer v. German Savings & Loan Society, 23 Wash. 132 (62 Pac. 862). In such a suit the superior title, whether legal or equitable1,prevails. § 5508, Ballinger’s Code. A creditor buying in his debtor’s real estate, at an execution sale on his own judgment is not a bona fide purchaser without notice, and takes the estate subject to all equities. Hacker v. White, 22 Wash. 415 (60 Pac. 1114, 79 Am. St. Rep. 945). Even if we concede that it was necessary to affix the notarial seal to the certificate of acknowledgment, or to have it certified as required in § 4528, supra, in order to effect a conveyance of real estate in this state, the assignee has the superior equitable title, and under the positive law of this state his title must prevail. The deed of assignment provides for a just and equitable distribution of the debtor’s property among all his creditors, and the law of New York in this respect is substantially the same as our own touching such assignments. We think it accords with the law and public policy of this state to uphold the assignment to the respondent. We have been unable to find from the evidence that the assignment was fraudulent.

The judgment of the court is therefore affirmed with costs to the respondent.

Beavis, O. J., and Hadley, Dunbar, Mount, Eullerton and Anders, JJ., concur.