John C. Cook, Assignee of Charles H. Cornell and John Conly, vs. John Kelly, Sheriff, et al. -- This is an action, the decision in which will determine the construction to be placed upon the Act of 1858, relative to the acknowledgment of assignments:
HILTON, J. -- The plaintiff claims, as assignee of Cornell and Conly, to be interested in certain property in the possession or under the control of the defendants, and in respect to which he asks for an injunction and receiver. The assignment to him bears date December 21, 1860, and purports to have been executed by Cornell and Conly for the benefit of their joint and individual creditors; but because from the certificate of the Commissioner of Deeds indorsed upon it, it appears that Cornell alone has acknowledged executing it; and its execution by Conly has only been proved by a subscribing witness. The defendants contend that its delivery in this condition was in violation of the "act to secure to creditors a first division of the estates of debtors who convey to assignees for the benefit of creditors," passed April 13, 1860, (see laws p. 594,); and therefore the plaintiff has acquired no right or interest in the property, which is the subject of the action.
By the first section of this act it is declared that every such assignment thereafter made, shall be in writing, and shall be duly acknowledged before an officer authorized to take the acknowledgment of deeds; and the certificates of such acknowledgment shall be duly indorsed upon the instrument before the delivery thereof to the assignee therein named.
Of course it will not be pretended that any interest would rest in the assignee until the assignment had been duly delivered to him; and as it is a familiar rule -- indeed it may be said to exist as a maxim -- that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not even although there are no negative words, be done in any other manner, (De Harris on Statutes 641;) it follows that there cannot under this law be a valid delivery of an assignment for the benefit of creditors until the prerequisites of the Statute have been complied with. Those prerequisites are: 1. The assignment must be in writing. 2. It must be acknowledged by the party making it before an officer authorized to take the acknowledgment of deeds. 3. The certificate of such acknowledgment must be duly indorsed on the instrument, and not until all these things have been done can a delivery of the instrument be made which will vest in the assignee any interest in the property described in the assignment; they are formalities which the Statute requires, and must, therefore, be deemed essential, and until complied with the instrument is not in a condition to be delivered. (Greenleaf, Jr., 294.)
But it is said that the object of the law in requiring the assignment to be acknowledged, was only to put it in a condition to be recorded, and as proof of its execution by a subscribing witness, is equivalent for that purpose to the actual acknowledgment of the party; it is, therefore, a substantial compliance with the Statute. I am unwilling, however, to assent to this view for several reasons.
1. The language used is free from any ambiguity. The party executing the instrument is required to acknowledge it before an officer authorized to take the acknowledgment of Deeds, and the certificate of such acknowledgment must be indorsed upon the paper.Continue reading the main story
Система «Сквозь строй» должна служить его верным часовым, а Стратмору вздумалось ее обойти. Чатрукьян слышал гулкие удары своего сердца. «ТРАНСТЕКСТ» заклинило на восемнадцать часовМысль о компьютерном вирусе, проникшем в «ТРАНСТЕКСТ» и теперь свободно разгуливающем по подвалам АНБ, была непереносима. - Я обязан об этом доложить, - сказал он вслух. В подобной ситуации надо известить только одного человека - старшего администратора систем безопасности АНБ, одышливого, весящего четыреста фунтов компьютерного гуру, придумавшего систему фильтров «Сквозь строй».