Jones v. Thompson

The plaintiff in error, W.J. Jones, commenced this action in replevin against Orvell Thompson, sheriff of Okmulgee county, to recover possession of a certain stock of merchandise. The plaintiff alleged in the ordinary form that he was the owner and entitled to immediate possession of said property. The answer of defendant was a general denial. Upon trial there was an instructed verdict and judgment thereon for defendant.

It seems that the stock of goods was owned by one J.H. Brinks, and that plaintiff undertook to deraign title and right the possession through an assignment for the benefit of creditors to one M.D. Hartsell, assignee. The plaintiff offered the written assignment in evidence. The assignment appears to be in proper form, duly executed and acknowledged.

The defendant objected to the introduction of the same in evidence, "for the reason that said purported assignment does not appear to have ever been recorded as required by the statutes of the state of Oklahoma, and that there is no evidence to show, or tending to show, that any of the statutory requirements have been complied with in making said assignment, and on the further ground that the said purported assignment is incompetent, irrelevant, and immaterial, and that there has been no showing that the provisions of the Bulk Sales Law of the state of Oklahoma has been complied with." This objection was sustained, and also objection to the further introduction of testimony was sustained for the reason that until an assignment was shown further inquiry would be immaterial. This, we think, was error.

Section 223, Rev. Laws 1910, provides that an assignment for the benefit of creditors must be recorded. Section 225 provides:

"An assignment for the benefit of creditors is void against creditors of the assignor, and against purchasers and incumbrancers in good faith and for value, if the assignment is not recorded * * * within twenty days after the date of the assignment."

The execution and delivery of the assignment vested inchoate title in the assignee. The provision requiring the same to be recorded is a condition subsequent, and not precedent, to the vesting of the title to the property in the assignee. Hockaday, Harmon Roe v. Drye, 7 Okla. 288, 54 P. 475. Failure on the part of the assignee to comply with the conditions subsequent does not render the assignment absolutely void for all purposes, but, in the language of the statute, it is "only void against creditors of the assignor and purchasers and incumbrancers in good faith and for value."

Notwithstanding the failure to record the assignment within the time prescribed by the statute, it is nevertheless valid against the assignor and all other persons except his creditors and purchasers and incumbrancers in good faith and for value. It nowhere appears in the record that the defendant was a creditor of the assignor, or purchaser or incumbrancer in good faith and for value, or that the defendant stood in the place of or held in the right of such creditor, purchaser, or incumbrancer. We do not perceive the application of the reference in the objection to the Bulk Sales Law.

We think the plaintiff should have been permitted to introduce the assignment in evidence, and any other competent evidence tending to show title and right to possession to the property in himself. If the assignment was void as against the defendant for failure to comply with the conditions subsequent, he, of course, would have the right to establish that fact.

Judgment is reversed, and the cause remanded.

SHARP, C. J., and KANE, HARDY, and RAINEY, JJ., concur. TURNER, OWEN, BRETT, and TISINGER, JJ., not participating.