Mowry v. Crocker

[331] By the Gowrt, Cole, J. This was a voluntary assignment of property in trust for creditors, made and executed in the State of Ehode Island. It appears that the assignor, David Mowry, the assignee, Duty Mowry, Willis Cook, the j udgment creditor, who refused to become a party to the assignment, and Lippit, the assignee of this judgment and the attaching creditor, were all citizens of that State. And it is further conceded that the assignment of David Mowry was executed conformably to the laws of Ehode Island, and was valid and effectual to pass the title of the property, real and personal, to the assignee, Duty, at the time, within the limits of the State, belonging to the assignor. Such being the case, we suppose, upon principles of public policy, and judicial comity, generally recognized by the courts of the different states of the Union, we must sanction the validity of the assignment and hold that it operated as a transfer of the debt against Mr. Arnold, (which was in the hands of the appellee), to the assignee, even though it should be admitted that the assignment was not good by the laws of this State. The law upon this subject is laid down with great distinctness and ability in the following cases, to which it seems only necessary to refer, without comment, to show the considerations which have induced the courts of our sister states to adopt this doctrine in regard to voluntary assignments of personal property. Whipple vs. Thayer, 16 Pick., 25; Daniels vs. Willard, 16 Id., 36; Burlock vs. Taylor, et al., 16 Id., 335; Means vs. Hapgood, 19 Id., 105; Warren vs. Copelin, 4 Met., 595; Holmes vs. Remsen, 4 John. Chy. R., 486; S. C. 20 John., 262; Abraham vs. Pleston, 3 Wend., 566; Hoyt vs. Thompson, 1 Selden, 352; Atwood et al., vs. The Protection Ins. Co., 14 Conn., 555; Saunders vs. Williams, et al., 5 N. H., 213; Sanderson et al. vs. Bradford and Trustee, 10 Id., 260; Milne vs. Moreton, 6 Binn., 353. See also Harrison vs. Storey, 5 Cranch, 289; Brasheare vs. West, et al., 7 Peters, 608; Black vs. Zacharie, 3 How., 483; Story Conf. Laws, § 383 et seq., and cases cited by him in the notes. Assuming, then, that the personal property had no locality but followod’the law of the domicil of the owner as to the transfer and disposition thereof, [332] and that by the execution of the assignment the personal property, wheresoever situated, passed, ipso facto, to the assignee, and that the'assignment being good and valid in the state where executed, must be sustained here on the ground of comity, and we have then to inquire whether the assignee, by neglecting to give the appellee notice of the assignment, and reducing the property to possession, has been guilty of such laches as to enable the attaching creditor to hold it as against him. From the statement of facts filed in the case, it appears that the assignment was executed on the 1st day of December, 1851, and that the appellant accepted the trust and entered upon the discharge of his duties as assignee; that the creditors of David Howry, with the exception of Cook, gave their assent to the assignment, and executed the release therein provided, and that the appellee had information, by way of rumor, of the assignment, before the attachment; but from whom, or when, he cannot say. Further, that on the 21st of May, 1857, Lippit, the assignee of Cook’s judgment, commenced an action in the circuit court of Milwaukee county, against David Mowry, and attached the moneys in dispute in the hands of the appellee; and that on the-day of June, 1857, a written notice of the assignment was personally served on the appellee, and a demand made in behalf of the appellant for the moneys in his possession. Also that the appellee has not made answer to the process of garnishment under the attachment, and still holds the moneys, subject to the opinion and judgment of the court. As already intimated, we suppose the effect of the assignment was to operate at least as an equitable transfer of the debt against Mr. Arnold in the hands of the appellee, to the appellant. Undoubtedly, if Mr. Arnold, or the appellee, after the assignment and before any notice thereof, had paid over the money to the assignor, they would have been discharged, and the present action could not have been sustained. The object of notice was to charge the debtor with the duty of payment to the assignee. And probably if the money had been attached in the hands of the appellee by a creditor of the assignor, and [333] paid over under an order of court before notice of tbe assignment, it could not again be recovered.' But before tbe appellee answered the garnishee process, and confessedly while the money was in his hands, he received a written notice of the assignment and demand of the money on behalf of the appellant. And it also appears that the appellee had information by way of rumor of the assignment before the attachment. We think this was all that was necessary for the protection of the appellee, and to maintain the title oí the appellant to the money. It was insisted upon the ai'gument by the counsel for the appellee that it was the duty of the assignee, in order to perfect his title to this money, to give notice of the assignment, and to reduce the money to his possession, within a reasonable time. “ The notice was indispensable to charge the debtor “ with the duty of payment to the assignee, so that, if without “notice, he paid the debt to the assignor, or it was recovered “ by process against him, he would be discharged from the “ debt.” Story Conf. Laws, § 396. Further than this we do not think the notice was material in this case. The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.