Dudley v. Whiting

The opinion of the court was delivered by Vaeentine, J.: This was an action of replevin brought by Guilford Dudley against Charles C. Whiting. The goods in controversy originally belonged to Asa Hairgrove. On the 1st of January 1866, Hairgrove by a voluntary assignment for the benefit of creditors transferred these goods to John H. Murphy, and Murphy took immediate possession of them. Five days thereafter, and on the 6th of January, Murphy executed an assignment-bond. On the 8th of February Murphy sold said goods to said Dudley, and they [50] commenced immediately to invoice the same, Dudley having full knowledge of all the facts, and of the claim of Daniels, Millington & Co., hereinafter mentioned. On the 9th of February 1866 a judgment was rendered in the district court of Shawnee county on said claim, which was for goods sold long before said assignment in favor of Daniels, Millington & Co., and against Asa Hairgrove, for the sum of $1,156.98 and costs; and the next day, February 10th, an execution was issued on said judgment and delivered to said Whiting, who was sheriff of said county, who levied the same immediately upon said goods, and took them into his possession. On the 16th of February 1866 Dudley by this action replevied said goods from said Whiting. About the 28th of February, Dudley and Murphy finished invoicing said goods, and Dudley then paid for the same by drawing his check for the amount on Camey & Stevens of Leavenworth. This was afterwards changed into a certificate of deposit, dated February 28th 1866, drawn by Thompson & Woodruff of Leavenworth, to be paid by themselves on surrender of the certificate, and on the final settlement with the creditors of Asa Hairgrove. Afterwards this action was tried, and the trial resulted in a judgment for Whiting and against Dudley. Afterwards Whiting died, and the action was then revived in the name of the administratrix, Kate M. Whiting, who is now the defendant in error. We do not think it is necessary to state any other facts. Said assignment was void. The statute then in force made it void: Comp. Laws, 102. The assignee took upon himself the trust attempted to be conferred upon him six days before he executed any bond as the statute required. This alone made the assignment void. There are other reasons why we think the assignment is void, but this being sufficient, we shall not mention them. The assignment being void, neither Murphy nor Dudley got any title to the property. The property still remained Hairgrove’s, as between Hairgrove, Murphy, Dudley, arid Hairgrove’s creditors. Daniels, Millington & Co. were Hairgrove’s creditors, and had been such for a long time prior [51] to the execution of said assignment. They had a right therefore to have said execution levied on said property. And hence it must necessarily follow that the defendant had a right to recover in this action. There are other questions raised in this case; but with the opinion we have'already expressed we hardly think it is necessary to express any opinion upon said other questions. The judgment of the court below is affirmed. All the Justices concurring.