John Hardmann and Daniel Geulfoyle, Respondents, v. John B. Bowen, Appellant

John Hardmann and Daniel Geulfoyle, Respondents, v. John B. Bowen, Appellant. In assignments for the benefit of creditors, it is necessary, that the assignor make the acknowledgment required by the statute (Laws 1860, ch. 848), before the title will become vested in the assignees. Even though the assignment be in writing, and be delivered together with the possession of the assigned property, creditors of the assignor may attach the property in the hands of the assignees, prior to the making of the statutory acknowledgment. When a statute gives a new remedy, though only affirmative in form, if, by its terms, a negative is implied, it is not to be deemed directory merely; thus, when the statute requires every assignment to be acknowledged before the proper officer, before delivery, it implies, that it shall not be delivered before acknowledgment. This is an action of replevin. The plaintiffs claim to make title to the property through an assignment in trust for the benefit of creditors, made by James Sheridan, John Sheridan and Patrick Sheridan. The defendant is the sheriff of Broome cbunty, and claims to hold the property by virtue of a seizure thereof, upon an attachment issued out of the Supreme. Court, in favor of one Phelps and others, creditors, against the said Sheridans. The cause was tried before Justice Balcom, without a jury, and he found the following facts, to wit: “That the said Sheridans made the said assignment on the 31st December, 1860, the said'goods being in Binghamton, and that the plaintiffs took possession of the goods on the day the assignment bears date; that they commenced making an inventory of the goods on the 1st day of January, 1861; that the assignment was not acknowledged by the assignors when it was delivered, but was proved by the subscribing witness thereto, on the 3d day of January, 1861, and was recorded that day in the office of the clerk of Broome county; that' the defendant was the sheriff of Broome county at the date of the assignment, and still is such sheriff; that as such sheriff, he took possession of the said goods on the 2d day of January, 1861, by virtue of an attachment issued out of the Supreme Court, bearing date that day against the property of the said Sheridans, in favor of J. Phelps and others, who recovered a judgment in the Supreme Court on the action wherein said attachment was issued on the 14th day of February, 1861, for $881.79 damages and costs. The goods were worth $1,200. The goods were replevied and delivered to the plaintiffs. The judge gave judgment for the defendant, for a return of the property, finding the title in them holding that the assignment had not become operative when the defendant seized the goods on the attachment, because the assignment was neither acknowledged or proved. The plaintiffs appealed from the said judgment of the General Term, where the judgment was affirmed, and the defendant appealed therefrom to this court. George Bartlett, for the appellant. Hotchkiss & Seymour, for the respondents. [MAJORITY — Mason, J.] Mason, J. The question presented for adjudication in this case is, whether the delivery of this assignment executed by the Sheridans, hut not acknowledged, with the delivery of the possession of the property to the plaintiffs under the assignment, passed the title to them, so that they can hold it against the defendant’s levy on the attachment against Sheridans, in favor of Phelps and others. The question depends entirely upon the construction to be put upon the first section of the act of April 13, 1860 (Laws of 1860, chap. 348), which declares that “ every conveyance or assignment made by a debtor or debtors of his, her, or their estates, real or personal, or both, in trust to an assignee or assignees, for' the creditors of such debtor or debtors, shall be in writing, and shall be duly acknowledged before an officer authorized to take the acknowledgment of deeds, and that the certificate of such acknowledgment shall be duly indorsed upon such conveyance or assignment, before the delivery thereof to the assignee or assignees therein named,” (Laws 1860, chap. 348.) The argument of the appellant’s counsel is, that this statute is merely directory, and leaves the former common law in full force, and this argreement is sought to he maintained upon some quite elementary prin ciples in the construction of statutes. We are referred to Dwarris, Sedgwick and Smith on the construction of statutes for the doctrine that an affirmative statute does not take away the common law. This rule camxot be denied or questioned at this day, for it has been too well and too long established. The language of Lox’d Coke, that a statute nxade ixx the affirmative, without any negative expressed or, implied, does not take away the common law, is now elementary. (2 Just. 200; Stafford v. Ingersol, 3 Hill, 41; Clark v. Brown, 18 Wend. 220; Almy v. Harris, 5 Johns. 175; Wood v. Chapin, 12 N. Y. 521, 526; Hall v. Tuttle, 6 Hill, 42; Dwarris on Stat. 638 ; Smith’s Com. on Stat. Law, p. 771, § 660.) The rule has sprung up under the decisions in regard to remedies, and all that is held is, that if the statute gives a new remedy, and is merely affirmative in its terms without any negative, express or implied, it does not take away the common law rexnedy. The rule has no application to a case like the present. If the legislature were to enact a statute expressly declaring that evexy conveyance of real estate shall be written or printed oxx parchment, it cannot be'doubted that a deed written on common paper would not answer. Our present statute says, that every grant in fee or of a freehold estate shall be subscribed and sealed by the grantor. (1 R. S. 738, § 137.) There are no negative words and no declarative words that the deed shall be inoperative if not scaled, and yet it has never been doubted that the seal is essential to give it validity. The fundamental mistake with the appellant’s argument is in treating this as merely an affirmative, declaratory statute. It is no such thing. It introduces a new law in regard to assignments. It requires every assignment, whether of real or personal property, to be acknowledged before an officer, authorized to take acknowledgments, before delivery, and the certificate of acknowledgment to be indorsed upon the assignment. The language is peremptory. Every assignment, etc., shall be acknowledged before delivery. This, as I have already said, introduces a new rule of law in regard . to assignments. It is a maxim of the law, 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. (Dwarris on Stat. 10 ; 9 Law Lib. 641, marg. p.; Smith’s Com. on Stat. Law, p. 778, § 665.) This statute declares, that every assignment in trust for the benefit of creditors shall be acknowledged before delivery. It is only necessary to say, that no assignment can be delivered without being acknowledged, without violating the plain mandates of this statute, to perceive that this statute itself contains a clear negative against an assignment being made in any other way. It is very clear to my mind, that a negative of the right to make an assignment in any other manner is implied in the very language of the statute, for when the statute declares, in terms, that every assignment shall be acknowledged before delivery, it, by necessary implication, provides, that no assignment shall be delivered without acknowledgment. It clearly denies, and withholds the right, which before existed, to dispense with the acknowledgment. "We are referred to the several adjudged cases, holding some of the subsequent sections of this act to be merely directory. The case of Juliard v. Rathbone et al. (39 Barb. 97) holds, that the provisions, requiring the assignor within twenty days after the date of the assignment to make and deliver to the county judge an inventory of his debts and assets, were merely directory as to time, and if made after the expiration of the twenty days, it was good. The .case also holds, that section three, requiring the assignee within thirty days after the date of the assignment to give a bond for the faithful discharge of his duties, was so far directory, that his omission to give it within the thirty days would not invalidate the assignment. This case was rightly decided, and has been affirmed by several subsequent cases. (Van Vleet v. Slauson, 45 Barb. 317; Evans v. Chapin, 20 How. 289; Barbour v. Everson, 16 Abbott, 366.) These cases were well decided, and repose upon the soundest principles of statute construction. The section which requires the assignor within twenty days to make out an inventory of his debts and assets, and deliver the same to the county judge, containing no negative words against the exercise of the right to make it afterward, was held to be merely directory as to time, as the statute was entirely silent as to the effect of the omission to do so. The same was also held in regard to the omission to give the bond within thirty.days. These cases, however, were also placed upon another ground that,, as the assignments were properly executed, and duly acknowledged and delivered, and possession of the property taken by the assignees, the title of the property, passed, and no omission of the assignor, nor his absolute refusal even to make the inventory within the twenty days, could invalidate the assignment, upon the familiar principle that no acts of the assignor, after the assignment has been executed and-' delivered, and possession of the property taken by the assignees, or any omission on his part, can invalidate the assignment. (4 Johns. Ch. 135; 1 Duer, 58; 20 N. Y. 15; 5 Seld. 142, 152; Burrill on Assignments, 304, 306, 308, 309; 6 Barb. 91, 94; 33 id. 127, 135; 24 id. 105; 32 id. 126; 39 id. 102; Burrill on Assignments [3d ed.], 442.) This rule applies with equal force to the assignees, if the assignment was valid in creation, having been honestly and properly executed and delivered, no subsequent illegal acts, either of omission or commission, can in any manner invalidate it. The omission or refusal of the assignee to give the inventory, which the statute makes it his duty to do, might, perhaps, be treated as refusal to serve: at any rate, it would furnish good ground for his removal by the court, and the appointment of a receiver .to execute the assignment. (5 Seld. 176; 2 Barb. S. C. 446; 5 Paige, 46; 8 id. 294; 2 Story’s Eq. Jur. § 1289; Burrill on Assignments [2d ed.], 507, 568 ; id. [3d ed.], 573 ; 39 Barb. 10l, l02. The defendant having seized, taken these goods before this assignment was acknowledged, it follows, that the assignees could not hold these goods as against these attaching creditors, and that judgment of the Supreme Court was right, and should be affirmed. All concur. Judgment affirmed.