In re Neale

17 F. Cas. 1264, 3 Nat. Bank. Reg. 177

• Court: District Court, D. North Carolina
• Decided: July 1, 1869
• Status: Published

Opinion

BROOKS, District Judge.

The question presented by the certificate of Mr. Register Lehman in this case is whether the deed of assignment executed to the assignee by the register (there being no opposing interest), and the same duly certified by the clerk under the seal of the court, should be proved before a clerk of the superior court, and be by him certified, and ordered to be registered according to the provisions of the law of North Carolina in relation to deeds executed by private parties, before the same can be registered. I have examined carefully the reasons assigned by the register for the opinion expressed by him, and fully concur in both his reasoning and conclusion. I have no doubt but that congress of the United States has full power, in framing “a uniform system of bankruptcy,” to adopt such provisions as it may think proper in regard to the probate of any deed or assignment that may become necessary in carrying out the purposes of the law. Much importance should be attached to that expression “uniform system through the United States.” All of the states, I believe, have their bankrupt or insolvent laws; but these are not respected beyond the limits of the state passing such law, and the reason why they are not respected beyond the limits of the state passing them is that there -is no uniformity in the .system of the state bankrupt laws; many of them resembling each other in many respects, no two alike in every respect, hence no two with the same system. It could not properly be contended that congress, under the power expressly delegated by the constitution, could pass one system of bankruptcy laws to be in force in one state, and altogether another and a different system to be in force in another state. Indeed, if there were any essential differences, it would not conform to' that important requirement. It would not be “a uniform system.” The contrary might possibly be contended for if the power to pass a bankrupt law by congress was claimed as a constructive or implied right. But, when the power is expressly given, it excludes any implied power, and, when a particular system is prescribed, it effectually excludes any other system than the one provided. Then the only system of bankruptcy laws which congress has the power to pass is a uniform one, —one which requires the sapie acts and same duties from the officers appointed to execute the law in all the states, and producing the same general results in all the states, without regard to the important differences existing in the laws of the different states.

If, in preparing and passing the present system of bankrupt laws, congress has omit-ed to make any provision in regard to executing and registering the conveyances or assignments required, I would readily hold that the state laws should be conformed to. If I am not altogether wrong in the views I have expressed, then the only question remaining to be considered is whether the bankruptcy act prescribes the forms to. be observed in executing and preparing this instrument (the assignment) “to be recorded in every county or registry in the United States in which lands of the bankrupt are situate.” I think the act already so provides. The object in requiring the assignment to be recorded is not to vest a title in the assignee, for he has title, though the assignment might never be recorded. The assignee may use it as evidence of his title in the courts, though the same may not have been registered. In this an assignment under the provisions of the bankruptcy act is essentially different from a deed or assignment (though absolute) made under the provisions of the laws of North Carolina. Under the latter, registration is necessary to the perfecting the title, though the deed be absolute. But the purpose in requiring the assignee to “cause the assignment to be recorded in every county or registry in the United States in which lands of the bankrupt are situate” is that every purchaser of land at an assignee’s sale may have recourse to a certified copy from such registry, as a link in his claim of title in any suit he may bring for the possession, or in any suit in respect to the property which he, or his heirs, or others claiming under him, may desire to bring thereafter. Registration is necessary for the safety of such purchaser, for there is but one original assignment, which is filed in the district court clerk’s office. It might be destroyed or lost, and often most inconvenient to have recourse to. Where this law is observed the loss of the original would work no damage, or work inconvenience to the purchaser or any other claiming under him, for they have recourse to a "certified copy” from the registry convenient, and which the act declares “shall be evidence thereof in all courts.” It seems to me that any other conclusion would not be sustained by the language or the clear meaning of the act. In the 1st paragraph of the 14th section, after providing that the assignment shall be made by the judge or register, we find the following: “And thereupon by operation of law the title to all such property and estate, both real and personal, shall vest in the assignee.” There is nothing preceding this language in regard to registration. Then what do we find subsequently in the same section to sustain the view that registration is not necessary to perfect the title of the assignee, and also that there is no other probate contemplated as necessary than the attestation of the clerk and affixing his seal of office. That this means the clerk of the district court of the United States there can scarcely be room for doubt. After declaring that the assignee may sue for and recover the estate, prosecute and defend all suits in which the bankrupt may be a party, we find the following: “And a copy duly certified by the clerk of the court under the seal thereof of the assignment made by the judge or the register (as the case may be) to him as assignee, shall be conclusive evidence of his title as such assignee to take, hold, sue for, and recover the property of the bankrupt.” And to show further that no other proof or probate of the assignment appears to have been made in this case is necessary, I refer to the language of that paragraph of the 14th section which relates directly to registering the assignment. It is as follows: “And shall within six months cause the assignment to him to be recorded in every registry of deeds,” &c. If the law had contemplated proof as required by the state laws, is it not most likely the words proved and recorded would have been used?

My opinion is that such assignment does not require to be proved before a clerk of the superior court, or his certificate, to prepare it for registration, but that registers of deeds must record the same upon a certificate of the clerk of the district court that the same is a copy of the assignment on file in his office, with his seal affixed, upon demand that same shall be recorded, and a tender to him of the fees allowed him for such service by the laws of the state. Let this be certified to Mr. Register Lehman.