Taken generally as a transfer of rights or property from one person to another, see Black's Law Dictionary 142 (10th ed. 2014), the cognizability and effect on third parties of the right of assignment have developed as, and in this jurisdiction largely remain, matters of court-made law. See Damaskus v. McCartyโJohnson Heating & Eng'g Co., 88 Colo. 279, 295 P. 490, 491 (1931) (embracing plaintiff's contention that โ[t]he validity of assignments, except as otherwise provided by statute, is to be determined on principles of the common lawโ); see, e.g., Condo v. Conners, 266 P.3d 1110, 1112, 1116โ19 (Colo.2011) (looking to the Restatement (Second) of Contracts to resolve dispute regarding assignment of contractual rights).
Taken generally as a transfer of rights or property from one person to another, see Black's Law Dictionary 142 (10th ed. 2014), the cognizability and effect on third parties of the right of assignment have developed as, and in this jurisdiction largely remain, matters of court-made law. See Damaskus v. McCartyโJohnson Heating & Eng'g Co., 88 Colo. 279, 295 P. 490, 491 (1931) (embracing plaintiff's contention that โ[t]he validity of assignments, except as otherwise provided by statute, is to be determined on principles of the common lawโ); see, e.g., Condo v. Conners, 266 P.3d 1110, 1112, 1116โ19 (Colo.2011) (looking to the Restatement (Second) of Contracts to resolve dispute regarding assignment of contractual rights).
4 Am. Jur. ยง 97, p. 384. In Colorado common law assignments for the benefit of creditors are recognized. Cornforth v. Maguire, 12 Colo. 432, 21 Pac. 191; Damaskus v. McCarty-Johnson Heating and Engineering Company, 88 Colo. 279, 295 Pac. 490; McMinn v. Harrison, 93 Colo. 5, 23 P.2d 944. The rule is the same in California. Jarvis v. Webber, 196 Cal. 86, 236 Pac. 138. California has said that such assignment could be void only as against non-assenting creditors or subsequent purchasers or encumbrancers from the assignor who had no notice of the assignment and who, in good faith, paid value. Garn v. Thorwaldson, 40 Cal. App. 62, 180 Pac. 9. There is, of course, no evidence that Ferguson had any dealings with the California partnership.
So far as we are advised or can learn, it is universally held that statutes, such as section 48 (1), supra, providing for substituted service, are in derogation of the common law and must be strictly construed and followed before jurisdiction of the person can attach thereunder; and, as we have hereinbefore determined, the burden of establishing jurisdiction is upon the plaintiff. Damaskus v. McCarty-Johnson Co., 88 Colo. 279, 295 Pac. 490; Eckman v. Grear, 14 N.J. Misc. 807, 187 Atl. 556; Donnelly v. Carpenter, 55 Ohio App. 463, 9 N.E.2d 888; Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N.W. 557; Haughey v. Mineola Garage, Inc., 20 N.Y.S.2d 857; Morrow v. Asher, 55 F.2d 365; Wood v. White, 97 F.2d 646; Commonwealth v. Maryland Casualty Co., 112 F.2d 352; 9 Blashfield Encyclopedia of Automobile Law and Practice, p. 442, ยง 5914; 50 Am. Jur., p. 421, ยง 397; 59 C.J., p. 1123, ยง 665. No notice of service upon the secretary of state having been sent by registered mail by the defendant to the plaintiff; no affidavit of compliance having been filed on or before the return day of the process; and no allowance of further time appearing, we hold that the defendant utterly failed to comply with the provisions of our statute so as to give the court jurisdiction of plaintiff here by substituted or other service.
We heretofore have held that common-law assignments are valid, independent of statutory assignments. Damaskus v. McCarty-Johnson Heating Engineering Co., 88 Colo. 279, 295 Pac. 490. In McMullin v. Keogh-Doyle Meat Co., 96 Colo. 298, 42 P.2d 463, referring to the effect of a common-law assignment as related to the rights of a creditor, we said (p. 306):
In order to determine this controversy, it will be necessary to determine whether the instrument is merely a power of attorney or whether, under the circumstances of the case, it constitutes a common-law assignment, and if it does constitute a common-law assignment what are the rights and obligations of the parties thereunder. [1, 2] It was held by this court in the case of Damaskus v. McCarty-Johnson Co., 88 Colo. 279, 295 Pac. 490, that the common-law right to make an assignment for the benefit of creditors is not abrogated by our statutory enactments relative to such assignments. Not all of the debtor's property was included in the assignment made in this case, now under consideration, and the assignment contained a provision for the payment of an attorney's fee for services connected with, but antedating the time that the assignment became effective; it also provided for the payment "in full in priority to other debts in case of bankruptcy."
An instrument executed with such an intention, at least when possession is taken thereunder, constitutes a common-law assignment for the benefit of creditors. 5 C. J. 1118, ยงยง 141, 142. It is expressly conceded by all parties, both here and in the court below, that the transaction constituted such an assignment. This is a proper application of the principle laid down in Damaskus v. McCarty-Johnson Co., 88 Colo. 279, 295 Pac. 490. Without knowledge of any lien or claim of preference on the part of anybody, Harrison went into actual possession of the assignors' property. This included the fixtures and stock in trade of the McAtees at their drug store in Brighton, Colorado. Some at least of the creditors assented to the arrangement; in fact, Harrison testifies that he took the assignment with the consent of all the creditors.
Damaskus v. McCarty-Johnson Heating Engineering Co., 88 Colo. 279, 295 P. 490; In re Will of Dunphy, 60 Colo. 196, 153 P. 89. Judgment reversed and cause remanded with directions to enter a judgment not inconsistent herewith.