Opinion
(September Term, 1895.)
Assignment for Benefit of Creditors — Failure by Assignor to File Schedule of Preferred Debts — Registration of Deed.
1. Failure to file schedule of preferred debts within five days after registration of deed of assignment for creditors, as required by Acts 1893, ch. 453, renders the deed void.
2. Under Acts 1893, ch. 453, requiring schedule of preferred debts to be filed within five days after "registration" of deed of assignments for creditors, time for filing schedule commences to run from date of filing deed for registration, irrespective of the actual registration.
ACTION to declare void a deed of assignment made by the Sneed Furniture Company to the defendant Joe Jacobs, trustee, upon the ground of fraud, etc., tried before Bryan, J., and a jury, at May Term, 1895, of FORSYTH.
There was a verdict for the plaintiffs, and from the judgment thereon the defendants appealed. The facts are sufficiently stated in the opinion of Associate Justice Clark.
Watson Buxton and J. L. Patterson for plaintiffs.
Glenn Manly and E. B. Jones for defendants.
As was said in Bank v. Gilmer, 116 N.C. 684, 707, "Chapter 453, Laws 1893, is not a mere recommendation from the Legislature to insolvents as to the form of assignments and proceedings (428) thereunder, but in its very nature the act is imperative. If not complied with by the assignor in filing schedule as required, the assignment is invalid." This has been cited and approved in Frank v. Heiner, ante, 79 and Bank v. Gilmer, ante, 416. These decisions are sustained by the great weight of authority in other States, the numerous cases being cited in the excellent brief filed by plaintiffs' counsel. The statute being mandatory, it is necessarily so as to time. Mather v. McMillan, 60 Wis. 456, is in point, in which the deed of assignment was held invalid because recorded one day too late. Familiar instances are our own cases in which the service of notices of appeal and cases on appeal, and the like, has been held invalid when not made within the prescribed time. Wade v. New Bern, 72 N.C. 498; Taylor v. Brower, 78 N.C. 8; Adams v. Reaves, 74 N.C. 106. The deed of assignment was filed for registration 6 January, 1894. The schedule of preferred debts, which is required to be filed within five days after the registration was not filed till 12 January, 1894. "Excluding the first day and including the last," the mode of computation prescribed by The Code, sec. 596, this was not in time. That section excludes Sunday only when it is the last day of the time limited, so the case would not come within the decision in Barcroft v. Roberts, 92 N.C. 249. If The Code, sec. 596, applies, as it seems, only to times limited for services, etc., prescribed by The Code of Civil Procedure, then Sunday, even if it had been the last day, would not have been excluded in the computation. Branch v. R. R., 77 N.C. 347; Keeter v. R. R., 86 N.C. 346. Nor does it aid the defendant that the Register of Deeds in point of fact did not register the instrument till 8 January, for the filing for registration is in law registration, and all rights and liabilities accrue from the (429) date of filing and do not depend upon the greater or less diligence of the register in performing his duty. McKinnon v. McLean, 19 N.C. 79; Motts v. Bright, 20 N.C. 258; Parker v. Scott, 64 N.C. 118; Davis v. Whitaker, 114 N.C. 279.
No error. Cited: Bank v. Gilmer, ante, 425; Burgess v. Burgess, post, 448; Cooper v. McKinnon, 122 N.C. 449; Brown v. Nimocks, 124 N.C. 419; Carter v. R. R., 126 N.C. 442; Taylor v. Lauer, 127 N.C. 161; Lumber Co. v. Satchwell, 148 N.C. 317; Powell v. Lumber Co., 153 N.C. 57; Power Co. v. Power Co., 175 N.C. 673.