Barker v. Bean

Gilchrist, C. J. The question in this case is, whether an assignment of all a debtor’s property, real and personal, the execution of which is attested by one witness only, be valid against a subsequent attaching creditor who has notice of the assignment. Neither the act of July 5th, 1834, nor § 1, ch. 134 of the Revised Statutes, prescribe the form of assignments farther than to provide that “ no assignment, made for the benefit of the creditors of any debtor making the same, shall be valid unless it provides for an equal distribution of all the estate, rights and credits of such debtor, among all his creditors, in equal proportion to their respective claims.” It is very evident that an assignment must be in writing, and must be signed, for it must be sworn to, according to the form given by the statute. Whether it must be under seal, and how many witnesses must attest it, are questions which must be determined upon an examination of the requisitions of other statutes. The Revised Statutes, ch. 130, § 4, like the statute of 1829, (N. H. Laws, 1830, page 533,) provide that no deed of conveyance of real estate shall be valid to hold the same against any person but the grantor and his heirs only, unless such deed is attested by two or more witnesses. The case of Stone v. Ashley, 13 N. H. Rep. 43, is an authority, could [423] any be required, that the want of two witnesses is a defect as to any body but the grantor and his heirs; fatal as to creditors, fatal as to bona fide purchasers. This assignment purports, on its face, to be a conveyance of real estate. We cannot, since the decision in Stone v. Ashley, hold that the land can be conveyed to the trustee by such an instrument. The object of the statute was, that the assignment should provide for an equal distribution of all the estate of the debtor among all his creditors. If the real estate be not conveyed, the object of the statute will be defeated. Any creditor may then gain a preference over the rest by attaching it. If it were to be holden that a deed of assignment, attested by one witness only, could be valid for any purpose, because the parties intended to comply with the statute, the inequalities and undue preferences which the statute was designed to guard against, could not be avoided. The favored creditors would secure their claims by attachments of the property not effectually conveyed. We should thus have a preference by an attachment, instead of the preference formerly provided for by the assignment itself. The statute never intended that deeds of assignment might be valid only in part. It never was meant that a part of the debtor’s property should be conveyed, while the title to the remainder would remain in him, owing to the defect of execution of the assignment. The fact that the plaintiff had notice of the assignment is entirely immaterial. He had notice, it is true, that the defendant had made what purported to be an assignment of all his property, but he had notice, at the same time, that the assignment was invalid. He has merely made use of the rights given him by law, and has availed himself, for his own benefit, of the defect in the conveyance. No reason occurs to us why he might not properly take advantage of this defect, whether it came to his knowledge before or after he made his attachment. The deed being invalid, the prop [424] erty did not pass to the assignee, and was subject to be attached by the plaintiff. By the act of 1829, (N. H. Laws, 533, ed. of 1830,) it was provided that a deed, signed and sealed by the grantor, and “ signed ” by two or more witnesses, acknowledged and recorded, should be valid to pass the land without any other' act or ceremony. Also that no deed should be good and effectual in law to hold land, “ unless executed in manner aforesaid ;” nor should it be good and effectual in law to hold «land against any other person but the grantor, unless it were acknowledged and recorded. It was under this act that it was held in Stone v. Ashley, before cited, that a deed, attested by one witness only, was not valid even against the grantor. But the want of a record may be cured by notice of the deed. We have held in Rogers v. Jones, 8 N. H. Rep. 264, that if a party be chargeable with actual or constructive notice of the existence of the prior conveyance, such notice will have the same operation in this case as a record. By the fourth section of chapter 130 of the Revised Statutes, it is enacted that no deed shall be valid to hold land against any person but the grantor and his heirs only, unless it be “ attested, acknowledged and recorded according to the provisions of this chapter.” It is to be noticed that the word “ attested,” used in this statute, does not appear in the same connexion in the act of 1829. The attestation has a force given it which does not appear in the former act. But as it appears in connexion with the acknowledgment and record, and as the want of a record may be supplied by a notice, it may be argued that a want of the statutory attestation may be cured by actual notice of the deed. At common law, the attestation is not a thing essential to the deed itself, but it only constitutes the evidence of its authenticity. 4 Cruise 32, § 81. It is made essential, however, by our statute, but its object is not, like the record, to give notice to persons interested, of its existence. ^ In our [425] statute there is nothing but the mere collocation of the words that places the attestation on the same footing as the record, and we are not aware of any decision that actual notice will supply the want of it. The same reason for giving it this force does not exist as in the case of the record; and there is nothing in the Revised Statues that induces us to suppose the Legislature intended so materially to change the law. The notice, therefore, was immaterial. Trustee charged.