11 Abb. Pr. 400


New York Superior Court;

General Term, May, 1871.

Ejectment.—Voluntary Assignment by Insolvent. —Form oe Deed.

A deed showing upon its face that it is an assignment made by an insolvent, in proceedings to obtain his discharge under the statute concerning voluntary assignments, is insufficient to support an action of ejectment by the assignee, unless accompanied by proof of the proceedings and assignee’s oath as required by the statute.

The action was ejectment, brought by George B. Rockwell against William Brown and others. The answer contained a general denial and a claim of ad*401verse possession, under claim of title, for more than twenty years. On the trial, before the court and a jury, the plaintiff showed title in Isaac Y. Paddock, and then offered in evidence the deed of said Isaac Y. Paddock, which contained a recital that it was made pursuant to an order of a county judge in the matter of the insolvency of the grantor, and then in consideration of one dollar conveyed to plaintiff the premises in suit. Defendant’s counsel objected that this deed could not be read until the proceedings in insolvency were proved. The judge sustained the objection and plaintiff excepted. Xo further proof being offered, the court dismissed the complaint, and ordered the exceptions to be heard in the first instance at general term.

John Townshend, for plaintiff.

Thomas B. Browning, for defendant.

By the Court.—Freedman, J.*

The deed in question showed upon its face that it was an assignment made by an insolvent under the statute concerning voluntary assignments, pursuant to the application of the insolvent and his creditors, and in pursuance of an order of the county judge who entertained the proceeding. In conducting such proceeding the said officer exercised a special jurisdiction, acquired only in the mode prescribed by statute. Such jurisdiction is never presumed, but must, whenever questioned, be affirmatively proved. The plaintiff, therefore, in order to establish his right to recover, should have proven the proceeding and the assignment under the same (Best v. Strong, 2 Wend., 319; Salters v. Tobias, 3 Paige, 338; 2 Phil. on Ev., 321).

The statute also contains a general provision requir*402ing the assignee, before proceeding to the discharge of any of his duties, to take and subscribe a certain oath and file the same with the officer or court that appointed him, and it is only after the taking of such oath that the assignee is to be deemed vested with all the estate, real and personal, of the insolvent (2 Rev. Stat., 41, §§ 5, 6 ; Id., 5 ed., 115, §§7, 8).

Under this provision no estate vested in the assignee until he took the oath required, and in the absence of proof upon this point, the title must be deemed to remain in the insolvent. Hoag v. Hoag (35 N. Y., 469, 474, 475), is an authority not only upon this very point but also upon the question that without evidence that the assignee entered upon the discharge of his duties, no presumption can be indulged in that he took the oath. I may add here, that the doctrine that presumptions will not be indulged in except for the purpose of supporting a possession, applies with peculiar force to an action of ejectment, for in such action the plaintiff must wholly rely upon the strength of his own title, and cannot rely upon the weakness of that of his adversary.

The complaint, therefore, was properly dismissed, and plaintiff’s exceptions must be overruled and judgment rendered for the defendants, with costs.

Rockwell v. Brown
11 Abb. Pr. 400

Case Details

Rockwell v. Brown
Decision Date
May 1, 1871

11 Abb. Pr. 400

New York



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