Swart v. Thomas

Gilrillan, C. J. These cases differ essentially from that of Kingman v. Barton, 24 Minn. 295. In that case, the assignee failed to file his bond within the time prescribed by statute. The court held that the filing of a bond as required is in the nature of an acceptance of the trust, and an appearance in, and submission to the jurisdiction of, the court, for the purposes of the trust, by the assignee; and that his failure to file the bond, within the time prescribed, is equivalent to a refusal to accept the trust, and terminates whatever title vests in him by the filing of the assignment. It does not follow, however, that any other omission subsequent to the filing of the assignment, either on the part of the assignor or assignee, will terminate the proceedings. The proceeding is in the nature of a judicial proceeding. Clark v. Stanton, 24 Minn. 232. By the filing of the assignment the assignor initiates the proceeding, and submits himself and the property to the jurisdiction of the court for the purposes of the trust, (Kingman v. Barton,) and the court may do whatever may, after such filing, become necessary to the full execution of the trust. The failure of the assignor to do, after the trust is created by the filing of the assignment, any act which the statute requires him to do, such as to file an inventory, cannot have the effect to defeat the trust when once created. Under the amendment of the act of 1876, by Laws 1877, c. 67, (Gen. St. 1878, c. 41, § 25,) the assignee may file his bond, and so accept the trust and perfect his title at once, without waiting for the inventory to be filed. So that the filing of the inventory within the time prescribed, or the filing at all, is not' essential to the perfecting of title in the assignee. [144] The creation of the trust by filing the assignment, and the acceptance of it by the assignee in the manner indicated, is sufficient. The plaintiff’s title to the assigned property is good, and. he is entitled to recover, unless prevented by the alleged levy of execution upon the debts sued for in these actions. The debts were for goods sold and' delivered by the assignors to the defendants. The assignors were merchants, and kept regular books of account in their business, in which the goods sold to defendants were charged in the usual manner. The only thing done by the sheriff to levy on these debts, as-fairly appears from his certificate of levy, was to take the books of account into his possession, and this is claimed as a. proper levy upon the debts appearing therein. “Personal property capable of manual delivery shall be levied upon by the officer taking it into his custody.” Gen. St. e. 66, § 271. When the property, by reason of its bulk or other cause, cannot be immediately removed, another mode of levying is provided. Id. §§ 272, 273. “Other personal property shall be levied on by leaving a certified copy of the-execution, and a notice specifying the property levied on, with the person holding the same, or if a debt, with the debtor,” etc. Idi § 274. This latter is the mode of levying upon all debts, except, those which pass by delivery of the instruments upon which they rest, such as promissory notes, bills of exchange, and negotiable bonds. A debt growing out of transactions entered in a merchant’s books of account does not stand upon the same footing as these instruments. Such a debt would not pass by delivery of the book in which it is entered, nor is the possession of such book evidence of any right or title to the debt in the possessor. When verified in the manner provided by statute, it is evidence, to a certain extent, of the transactions entered in it. But the character of the debt, and the mode of transferring it, are not affected by entering the facts out of which the debt grows, in a book-account. [145] Except for convenience in proving them, such debts stand just as debts of which there is no written evidence, and they must be levied on in the same way. Judgments affirmed.