The judge may in his discretion require new or additional bonds.

In Nebraska,1 the assignees within thirty days after the execution of the assignment must file in the office of the clerk of the district court, in the county in which the assignor resides, an inventory of all the estate or effects assigned, accompanied with an affidavit by such assignees that the same is a full and complete inventory of all such estate and effects, so far as the same has come to their knowledge. The court or a judge thereof in vacation, on the application of the assignee, must appoint three appraisers. The assignee, as soon as the inventory and appraisement shall have been filed, must give a bond to the State in a prescribed form. The bond must be filed in the office of the clerk of the court, and must be entered on the journal and record of said court, and will inure to the use of all persons interested in the property assigned.

In Tennessee, the assignee must give a bond, with two or more good and sufficient sureties, in an amount equal to the value of the property mentioned in the assignment, payable to the State, and conditioned in a prescribed manner. He must also take oath that he will faithfully perform his duties, make an inventory, and return an account. It has been held that an assignment is not rendered invalid by a clause therein waiving a bond from the trustee; and the conveyance is valid to pass the title to the property without the bond.

5

In Texas the assignee forthwith after the execution and delivery of the assignment must execute a bond with securities to the State. It must be filed with the county clerk and will inure to the benefit of the assignor and creditors who may sue on it in their own names, jointly or severally.

2 Stats. of Tenn. (1871), § 1974.

'Whitworth v. Patterson, 6 Lea (Tenn.), 119.

Mills v. Haines, 3 Head, 335; Vance v. Smith, 2 Heisk. 343; Williams v. Gideon, 7 Id. 617; Edmonson v. Harris, 2 Tenn. Ch. (Cooper), 435.

' Acts of 1879, c. 53, p. 57; R. S. (1879), Appendix, p. 6, § 6.

Upon the filing of the bond the assignee shall take posses sion of the assigned property and proceed to execute the assignment.

In Wisconsin the assignee, before taking upon himself the trust, must deliver a bond to the county clerk as obligee, in a sum not less than the whole amount of the nominal value of the assets. The bond must have two or more sufficient sureties, freeholders of that State. It must be filed, immediately after its execution, in the office of the county clerk to whom it is executed.1

Within ten days after the execution of the assignment, the assignor shall also make and file in the office of said clerk a correct inventory of his assets and a list of his creditors, stating the place of residence of each such creditor and the amount due to each, which inventory and list shall be verified by his oath and have affixed a certificate of the assignee that the same is correct, according to his best knowledge and belief; and a failure to make and file such inventory and list shall render such assignment void, but no mistake therein shall invalidate such assignment or affect the right of any creditor. The word "mistake" includes mistakes of law.

2

1R. S. of Wis. (1878), §§ 1694, 1695; see Boland v. Benson, 50 Wis. 225; and cases cited under § 33a, ante.

2 Id. § 1697.

* Farwell v. Gundry, 52 Wis. 268.

CHAPTER XXXII.

RIGHTS, DUTIES AND POWERS OF THE ASSIGNEE.

The rights and powers with which the assignee becomes invested by the assignment, and the duties to which it subjects him, have already been generally noticed. In the present chapter they will be considered more particularly.

§ 391. How the Assignee Takes.-Under this head, it may be said generally that the assignee succeeds only to the rights of the assignor,' and is affected by all the equities against him, and that he takes the property subject to all equities. He takes subject to all existing liens,* charges

'Luckenbach v. Brickenstein, 5 W. & S. 145; German Savings Institution v. Adae, 8 Fed. Reptr. 106; Hodgson v. Barrett, 33 Ohio St. 63; James v. Mechanics' Nat. Bank, 12 R. I. 490; Morris's Appeal, 88 Penn. St. 368.

In California, it is provided by the Civil Code (§ 3460; Hitt. § 8460), that an assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than the assignor had in respect to things in action transferred by the assignment.

In Lycoming Ins. Co. v. Storrs (97 Penn. St. 354), an action was brought by an assignee for the benefit of creditors, upon a policy of insurance issued to his assignor. The defense was that the plaintiff's assignor had failed to pay premiums in accordance with the terms of the policy, after notice. It was held to be no answer for the assignee to show that he agreed with the agent of the company after the assignment, that such notice should be given to him, and that this agreement was not complied with. The assignee never stood in any contract relation with the company, and it is therefore wholly immaterial what agreement he made with the agent.

2

3

Moody v. Litton, 2 Ired. Eq. 382; Frow v. Downman, 11 Ala. 880.

Leger v. Bonaffe, 2 Barb. S C. 475; Addison v. Burckmyer, 4 Sandf. Ch. 498; Reed v. Sands, 37 Barb, 185; Van Heuson v. Radcliffe, 17 N. Y. 580; O'Hara v. Jones, 46 Ill. 288; Willis v. Henderson, 4 Scam. 13; Stow v. Yarwood, 20 Ill. 497; Goodwin v. Mix, 38 Ill. 115; Mellon's Appeal, 32 Penn. St. 121; Plunkett v. Carew, 1 Hill Ch. (S. Ca.) 169; Thorpe v. Dunlap, 4 Heisk. (Tenn.) 674; Warren v. Fenn, 28 Barb. 333; Maas v. Goodman, 2 Hilt. (N. Y.) 275; Arnold v. Grimes, 2 Iowa, 1; Griffin v. Marquardt. 17 N. Y. 28; Corn v. Saus, 3 Metc. (Ky.) 391; Roberts v. Corbin, 26 Iowa, 315; Williams v. Winsor, 12 R. I. 9. Thus where the plaintiff, by mistake of fact, sent to a New York bank, to be credited to the defendant, more money than was due the latter and the defendant assigned, it was held that the plaintiff could recover against the assignee, who took the assets subject to the equities existing against them in the hands of the defendant. First Nat. Bank v. Mastin Bank, 2 McCrary, 438.

Hence, also, it is held, that an assignee under a voluntary deed of trust, made to him pendente lite, cannot be admitted as a party. Stockett v. Goodman, 47

Md. 54.

4

⚫ Corning v. White, 2 Paige, 567; Haggerty v. Palmer, 6 Johns. Ch. 437;

and set-offs. Thus, he takes the property subject to the lien of a creditor which has attached by the filing of a bill before the assignment.1 He takes debts and choses in action subject to the right of set-off in the debtors. He takes interests

of devisees in land subject to legacies charged upon them. He takes buildings subject to liens for materials. And he takes deposits in bank subject to any lien of the bank existing at the time of the assignment. He takes real estate," and personal property,' subject to the equitable lien of the vendor for purchase money.

8

Real estate in the hands of the assignee is not exempt from the payment of taxes, whether assessed thereon before or after the assignment was made. Personal property remaining on the land thus taxed, after the assignment, is liable to distress for the non-payment of the taxes. But the assignee cannot be compelled to pay the taxes which accrued after the assignment, on land mortgaged by the assignor prior thereto on the petition of the mortgagees, there being no provision in the assignment authorizing such payment."

Walker v. Miller, 11 Ala. 1076; Tibbetts v. Weaver, 5 Strobh. 144; Barnes v. Fisher, 9 Mo. App. 574; Eames v. Mayo, 6 Ill. App. (Bradw.) 334; City Bank v. Sherlock, 16 N. B. R. 62; see Hathaway v. Fall River Nat. Bank, 131 Mass. 14. Corning v. White, 2 Paige, 567. The lien of an execution in the hands of a constable holds good against a subsequent assignment under the general assignment law. Frost v. Wilson, 70 Mo. 664; Griffin v. Wallace, 66 Ind. 410.

1

Where property has been levied on under an execution, and the owner assigns, the assignee acquires title subject to the lien of the execution, which title is good against all persons until the assignment is impeached for fraud. Mumper v. Rushmore, 79 N. Y. 19.

2

Fry v. Boyd, 3 Gratt. 73; see Ainslee v. Boynton, 2 Barb. S. C. 258. In Neal v. Lea (64 N. Ca. 678), it was held that a defendant could not offset to the claim of the plaintiff, as assignee of a note past due when assigned, by showing that the assignor was indebted to such defendant at the time of the assignment, unless such counter-claim had attached before the assignment, as by an agreement that it should be applied thereto or otherwise. Neal v. Lea, 64 N. Ca. 678; Connaughey v. Chambers, 64 Id. 284; Haywood v. McNair, 2 D. & B. 283; Wharton v. Hopkins, 11 Ired. 505. As to what debts can be set off, see post, $403.

'Beckwith v. Union Bank, 4 Sandf. S. C. 604; affi'd 9 N. Y. 211.

* Corn v. Saus, 3 Metc. (Ky.) 391; Thorpe v. Dunlap, 4 Heisk. (Tenn.) 674.

Sometimes a different rule is established by statute. Thus, in Connecticut, under the act of 1853, the assigned property vests at once in the trustee, free from all attachments made within sixty days preceding the execution of the assignment, all such attachments being declared by the statute to be dissolved.1

In the case of Dey v. Dunham, in the Court of Chancery in New York, it was held that a general assignee in trust for creditors was to be considered as a bona fide purchaser as against a prior unrecorded mortgage, he not having had due notice of such mortgage.3

But in a later case, in the same State, where a debtor had executed a chattel mortgage upon certain furniture as security for rent, but the mortgage was unrecorded, and the debtor subsequently executed a general assignment of all his property—it was held that the assignee was not a purchaser in good faith within the meaning of the act requiring chattel mortgages to be filed, and that he could not hold the proceeds of the furniture against the assignee of the lease.

In Ohio, where a mortgagee in possession under a chattel mortgage makes an assignment, and the assignee proceeds in the probate court to administer the trust according to the statutes, the mortgagee cannot maintain an action against the assignee for converting the property to his own use. The mortgagor's interest, where the assignee is clothed with

'Gen. Stat. (Rev. of 1875), p. 393, tit. 18, c. 11, § 12. But if the property is subsequently taken from the trustee, so that it cannot be used for the benefit of the creditors of the estate, the attachments and levies revive. But this section applies only to proceedings pending at the time of assignment, and not to such as are completed. Palmer v. Woodward, 28 Conn. 248. The title of the assignee relates back to the time of the institution of proceedings. Adams v. Lewis, 31 Conn. 501; see Boughton v. Crosby, 47 Id. 577; Von Wettberg v. Carson, 44 Id. 287.

2

2 Johns. Ch. 188; reversed on other grounds, in 15 Johns. 555. "This was a case of deed with defeasance, the deed only being recorded.

Van Heusen v. Radcliff, 17 N. Y. 580, Denio, J., discussing Dey v. Dunham, supra; Haggerty v. Palmer, 6 Johns. Ch. 437; Slade v. Van Vechten, 11 Paige, 21; see Re Collins, 12 N. B. R. 379; Platt v. Stewart, 13 Blatch. 481; Barker v. Smith, 12 N. B. R. 274; Wilkins v. Davis, 15 Id. 60.

* Lindemann v. Ingham, 36 Ohio St. 1; Ingham v. Lindemann, 37 Id. 288. (These cases were under the act of 1859.)