ad respondendum, that: "It is never too late to take advantage of an irregularity like this, so long as the party knows nothing of it. The process is a nullity." The court, in overruling the motion, said that: "Without saying whether this writ is absolutely void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step by which he is regularly in court, whether there be any process or not. We will not interfere merely because the party acted in ignorance that the process was void."

This brings us to the question whether the action is barred by the provisions of section 3143 of the statute of limitations of 1888. Section 3129 provides that "civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where in special cases, a different limitation is prescribed by statute." The period prescribed for the commencement of an action on a promissory note, under section 3143, is four years. The complaint was filed within that period, but summons was not issued until after its expiration. Section 3202, Comp. Laws 1888, which was in force at the date of filing said complaint, is as follows: "Civil actions in the courts of this territory are commenced by filing the complaint." This action has no other basis than said complaint, none other having been filed, and therefore must have been commenced at the filing of the complaint. When defendant entered his appearance and demurred, he became an active participant in an action commenced at the date of the filing of the complaint, and by his demurrer voluntarily submitted himself to the jurisdiction of the court, and invoked an adjudication of the case. This view is fully sustained in the case of Needham v. Salt Lake City, supra. It follows that, as this action was commenced within four years from the time that plaintiff's cause accrued, it was not barred. judgment of the lower court is therefore affirmed at the costs of the appellant.

BARTCH, C. J., and MINER, J., concur. (20 Utah, 407)

SNYDER v. MURDOCK, Sheriff, et al.

The

(Supreme Court of Utah. Nov. 8, 1899.) ASSIGNMENT OF CREDITORS-DESCRIPTION OF PROPERTY SUFFICIENCY - NOTICE OF ASSIGNMENT-ACTUAL IN LIEU OF STATUTORY -RECORDING ASSIGNMENT - DESCENT AND DISTRIBUTION.

1. Where a general assignment for the benefit of creditors contains, under the provisions of section 88, Rev. St. 1898, a general description of property assigned, and in terms embraces all the property of the assignors, it is so far in compliance with the statute.

2. Under our statute, a general assignment for the benefit of creditors conveys to the assignee all the property of the assignor, except exempt property, whether mentioned in the attached inventory or not. The inventory is simply to be annexed as a matter of convenience, as a guide to the assignee, for the information of those interested, and a guard against concealment of property.

3. Giving attaching creditors personal notice of the assignment, and mailing to each of them a

notice thereof, and recording the deed as soon as property of assignors is discovered in an adjoining county, and the publication of notice to creditors in the county where the assignors resided, are sufficient notice to attaching creditors, under sections 88, 90, 1975, Rev. St. 1898.

4. The assignee should record the deed of assignment in the several counties, if more than one, where the property of the assignor is located; but it is suflicient if this is done when he ascertains where the property is located.

5. Under section 2825, Rev. St. 1898, upon the death of an intestate, all his real and personal property passes to his heirs, subject to administration and the payment of debts against the estate and the rights of the widow and minor children therein.

(Syllabus by the Court.)

Appeal from district court, Fourth district; W. M. McCarty, Judge.

Action by W. I. Snyder, assignee for benefit of creditors of Rasband Bros., against James S. Murdock, sheriff, and others. Judgment for defendants, and plaintiff appeals. Reversed.

Among other allegations, it appears from the amended complaint that on the 9th day of August, 1897, Rasband Bros., of Summit county, made and delivered to the plaintiff their deed of assignment of all their property for the benefit of their creditors, which deed was duly filed and recorded in the office of the county recorder of Summit county on August 10, 1897, and the same was duly filed in the office of the clerk of the district court of said county on the 11th day of August, 1897; that on the 13th day of August, 1897, a true and correct inventory and valuation of the property so assigned, so far as it came to the possession or knowledge of the assignee, was filed in said court, together with a bond, as required by law; that the assignee duly qualified, and within 10 days thereafter published notice to creditors in the Park Record, a newspaper published and circulated in said county of Summit, where the parties resided; that on the 18th day of February, 1898, after a report had been made to the court, said court made an order extending the time for winding up the affairs of said assigned estate; that by said deed of assignment Rasband Bros. conveyed, and intended to convey, all their real, personal, and individual property, of every kind and nature, except that exempt from execution, wheresoever the same may be, to the assignee; that on the 14th day of June, 1898, said deed was duly recorded in Wasatch county; that on the 24th day of July, 1885, Thomas Rasband, the father of Rasband Bros., and of defendant W. G.. Rasband, and husband of the defendant Elizabeth Rasband, died intestate, in Wasatch county, and left certain real estate and water rights in said county; that on June 16, 1898, said W. G. Rasband was appointed and qualified as administrator of the estate of Thomas Rasband, and as such claims the right to administer upon all of the estate of said Thomas Rasband, deceased; that, after the death of Thomas Rasband, his heirs, including said Rasband Bros., and said defendants Rasband, verbally agreed, in con

sideration of the expressed will of the deceased, and of natural love and affection, that said Elizabeth Rasband should have and enjoy all the real and personal estate so left by her husband, during her life, with remainder to said heirs; that, in pursuance of said agreement, said widow has continued in possession of said personal property in Wasatch county, and has paid the taxes thereon, and has exhausted the same for living expenses, except about $135, and for the above reasons, and believing that they were bound by the agreement aforesaid, said real and personal property in Wasatch county was not placed in the inventory of said assignors, and was not scheduled therein; that plaintiff had no knowledge that said assignors had any interest in said estate until the same was attached by said defendants Murdock and Clyde, about the 16th day of December, 1897; that Murdock and Clyde, the attaching creditors, had, on August 15, 1897, notice of the assignment, which was duly mailed to them, and had personal notice thereof; that the administrator refused to join plaintiff in the recovery of said property, and that said refusal constituted a waiver of their rights therein, and plaintiff now has the right of possession of said property as assignee aforesaid, and of the interest of said assignors therein, as such assignee; that said Elizabeth Rasband consented to have administration of said estate for the purpose of having the interest of Rasband Bros. in said estate distributed to the creditors; that on December 15, 1897, said defendants Clyde and Murdock wrongfully, fraudulently, and falsely sued out a writ of attachment, which was levied on said real property in Wasatch county, so left by said Thomas Rasband, deceased, consisting of about 60 acres of land, in several pieces, and obtained judgment against Rasband Bros. thereon; that in September, 1898, said sheriff, at the request of said attaching creditors, had execution issued on said judgment, and wrongfully levied the same upon the property, and thereafter advertised and sold three-twelfths of said real estate, being the interest of said Rasband Bros., and defendant Clyde became the purchaser thereof; that no deed has as yet been issued on the certificate of sale. Plaintiff prays for an injunction, and that the sale be set aside. The schedule was duly verified. The deed of assignment is annexed to, and made a part of, the complaint. The property so attached, situated in Wasatch county, is not included in the schedule annexed to the deed of assignment. The deed of assignment recites that the assignors grant, convey, sell, assign, transfer, and set over to the assignee all and singular their co-partnership and individual estate, real and personal, goods, chattels, effects, credits, choses in action, judgments and property of every name and kind whatsoever, held by and in the name of the assignors, or each or either of them, or in the name of any other person for them, except such as is ex

empt from sale under execution. Said property, so far as the same can now be listed and inventoried, is set forth in the schedule annexed to the assignment, and the assignors covenant in said assignment that they will execute any and all other deeds or instruments as should be necessary to vest the trust thereby created in said assignee. To this amended complaint Murdock and Clyde filed a demurrer, specifying the grounds thereof. The action was dismissed as to Murdock, who disclaims any interest in the suit. The demurrer was sustained, and the action dismissed. From this judgment plaintiff appeals.

Bismark Snyder and W. I. Snyder, for appellant. A. C. Hatch and J. H. McDonald, for respondents.

After stating the facts, MINER, J., delivered the opinion of the court.

The questions to be determined in this case are: First. Does the deed of assignment convey to the assignee the six different pieces of land in Wasatch county, when such property was not specifically described in the schedule annexed to the assignment? Second. What was the effect of the failure to record the deed of assignment in Wasatch county? Third. Does the complaint show that Rasband Bros. or their assigns had any interest in the property in Wasatch county which was left by the deceased, Thomas Rasband?

With reference to the first proposition, section 88, Rev. St. 1898, among other things, provides that an assignor shall, in a general way, describe the property assigned, with its location; that the assignor shall annex to such an assignment an inventory, under oath, of his estate, real and personal, according to the best of his knowledge, and record the same in the office of the recorder of the county where the property is located; that such inventory shall not be conclusive as to the amount of the debtor's estate, and such assignment shall vest in the assignee the title to any other property belonging to the debtor at the time of making the assignment, except property exempt from execution. Section 97, Rev. St. 1898, provides that no assignment shall be declared fraudulent or void for the want of any list or inventory, as provided by the title, and further provides for the examination of the assignor, under oath, and the delivery to the assignee of any property embraced in the assignment. While it is a general rule that, in the construction of deeds and written contracts, general words contained in the instrument should be restricted and controlled in their operation by those which are particular and specific, yet it must be remembered that all rules must be considered subordinate to that primary governing rule which requires that such written instruments should be construed according to the intention of the parties. The act, when regulated by statute, should be governed by the statute in force at the time.

In looking into the assignment and the allegations in the complaint, it is evident that it was the intention of the assignors to convey all their property. They assigned, transferred, set over, conveyed, and sold all their individual and co-partnership property, both real and personal, including goods, chattels, effects, real estate, choses in action, and property, of every name or kind whatsoever, held by them, or in the name of any other person for them, or either of them, to the assignee, and they covenanted to execute deeds of conveyance and transfer to the assignee in and to all property, when called upon to do so. The terms used seem to manifest an intent on the part of the assignors to assign all of their property. It is true that the above words of conveyance are followed by the words that "said property, so far as the same can now be listed and inventoried, is set forth in the schedule marked 'Schedule A,' hereto annexed, and made a part of the indenture." This, however, when taken in connection with the other allegations in the complaint, does not indicate an intention to qualify or limit the comprehensive language previously used. The schedule was made a proper and convenient part of the assignment, but the inference should not be drawn that because some of the property of the assignors was left out of it, which might occur through mistake or inadvertence, that the title to all of the property of the assignors should not pass. It appears from the complaint that when the assignment was made and the schedule drawn the assignors did not know or believe that they had any interest in the property in Wasatch county that was omitted from the schedule. It appears that they labored under the supposition that, in accordance with the 'dying request of their father, they had, many years prior, parted with their interest in his estate to their mother. That they were wrong in this supposition or belief does not necessarily imply bad faith or dishonest motives in making the assignment with this property omitted from the schedule. The assignee never knew that his assignors had any interest in the Wasatch county property until after the attachment by Murdock and Clyde. Therefore he cannot be charged with any improper motive. The provisions of our statute above referred to are sufficiently comprehensive.

If the assignment, in terms, embraced all the property of the assignors, and in a general way described the property assigned, it is so far in compliance with the statute. The inventory to be annexed was not intended to be a part of the assignment, or to limit its effect or control its operation. This is evident from the language used as to what the inventory shall contain. The statute requires the assignor to annex to the assignment an inventory, under oath, of his estate, real and personal, according to the best of his knowledge, but provides that such inventory shall not be conclusive as to the amount of his estate, that such assignment shall vest in the as

signee the title of any other property belonging to the debtor, and that such assignment shall not be declared void or fraudulent for the want of any list or inventory, as required in the act. It is clear from the statute that the inventory is not required to be absolutely correct, but only so according to the best of the assignor's knowledge, and, to avoid any misunderstanding, confusion, or mistake as to its purpose, the statute provides that it shall not be declared void or fraudulent for the want of an inventory. The assignee is vested with the title to all the property, whether included in the inventory or not. The deed conveys all the assignors' property to the assignee. Under our statute, the inventory of property is simply to be annexed as a matter of convenience, and as a guide to the assignee, and for the information of those interested in the estate, and also as a guard against a concealment of the property.

This being a general assignment for the benefit of creditors, we are of the opinion that the deed conveyed to the assignee all the property of the assignors, except exempt property, and that the title of the assignee to all of the assignors' interest in the land in question is not affected by the failure of the assignors to include the property in the inventory. Smith v. Goodman, 149 Ill. 75, 36 N. E. 621; Falk v. Liebes (Colo. App.) 42 Pac. 46; Bank v. Kenneally, 93 N. Y. 374; Platt v. Lott, 17 N. Y. 478; Sabin v. Lebenbaum, 26 Or. 420, 38 Pac. 434; Babbitt v. Mandell (Ariz.) 53 Pac. 577; Burrill, Assignm. § 100; McIlhenny Co. v. Miller, 68 Tex. 357, 4 S. W. 614; Loomis v. Griffin, 78 Iowa, 482, 43 N. W. 296; Schaller v. Wright, 70 Iowa, 666, 28 N. W. 460. In Meeker v. Felts (N. J. Ch.) 23 Atl. 672, it was held that a general assignment by a debtor of all his real and personal property will carry his vested interest as a residuary legatee of an estate, though such interest was not included in the inventory, and it was not his intention to assign it. Pitman v. Marquardt (Ind. App.) 50 N. E. 894.

It also appears from the complaint that the respondents Murdock and Clyde each received personal notice of the assignment, and obtained a copy of the deed of assignment prior to the time of the commencement of their action in attachment, and that on the 15th day of August, 1897, the assignee mailed to each of them notice of said assignment; that on the 14th day of June, 1898, soon after the assignee had notice of such property being located in Wasatch county, the deed of assignment was duly recorded in the office of the recorder of deeds for said county; that notice to creditors of the assignment was duly published in a newspaper in Park City, Summit county, as provided by statute. The deed was recorded in Summit county, where the assignors resided, and where the assignee believed all the property was located, at the time of the assignment. It was not recorded in Wasatch county until the assignee was informed by the attachment proceedings of the assign

ors' interest in their father's estate. We are of the opinion that the notice to the attaching creditors was sufficient. The parties had actual notice of the assignment, and were not in a position to object that the statutory notice had not been given. Whittaker v. Greenwood, 17 Utah, 33, 53 Pac. 736; Dupee v. Trust Co. (Utah) 57 Pac. 845; section 1975, Rev. St. 1898.

Under the statute, the assignee should record the deed in the several counties, if there is more than one, where the property of the assignor is located. It is sufficient if this is done when he ascertains where the property is located. He is not called upon to perform unreasonable or impracticable acts, but it is his duty to take possession and follow the property of the assignor wherever it may be found.

Under the statute, whatever interest the assignors, as heirs, had in the real estate left by their father, passed under the deed to the assignee, subject, of course, to administra- | tion, the payment of debts against the estate, expenses of administration, and the rights of the widow and minor children therein. The real and personal estate belonging to Thomas Rasband, upon his death, passed to his heirs, subject to his debts, allowances, and expenses of administration, under section 2825, Rev. St. 1898. The complaint shows that there were certain rights and interests in said estate belonging to the assignors. The judgment of the district court in sustaining the demurrer and in dismissing the complaint is reversed, with costs, and the cause is remanded, with directions to overrule the demurrer, set aside the judgment, and to grant a new trial, and proceed in accordance with this opinion.

BARTCH, C. J., and BASKIN, J., concur.

(20 Utah, 419)

SNYDER v. MURDOCK, Sheriff, et al. (Supreme Court of Utah. Nov. 8, 1899.) GENERAL ASSIGNMENT FOR CREDITORS-TITLE TO PROPERTY-STATUTE OF FRAUDSASSIGNEE-FAILURE TO REDUCE PERSONAL PROPERTY TO POSSESSION-WHEN FRAUDULENT.

1. In a general assignment for benefit of creditors the title to all real and personal property of the assignor immediately vests in the assignee, whether mentioned in the schedule or not.

2. The rule that a sale or assignment of chattels, unaccompanied by a change of possession, is fraudulent per se, under sections 2473, 2474, Rev. St. 1898, as to execution creditors or subsequent purchasers of the vendor, does not necessarily apply to assignments for the benefit of creditors, but unreasonable delay in taking possession is a circumstance from which fraud may be inferred unless explained.

3. Where an assignee believed that certain water rights in the names of the assignors were appurtenant to the land, and, with it, had passed to him, and that such land and water rights were subject to an action then pending, and explains, by such belief, his failure to reduce the certificates of water stock to possession, he is

guilty of no fraud, and the assignment will not be set aside.

4. Water stock in an incorporated company is personal property, which may be transferred by assignment and by delivery of the certificate of stock, under chapter 87, p. 304, Sess. Laws 1896. 5. Water appurtenant to land passes by conveyance of the land unless reserved; or such water rights may be treated as personal property, and separately conveyed, under section 1281, Rev. St. 1898.

(Syllabus by the Court.)

Appeal from district court, Fourth district; W. M. McCarty, Judge.

Action by W. I. Snyder, assignee of Rasband Bros., against James S. Murdock, sheriff, and others. Judgment for defendants, and plaintiff appeals. Reversed.

Bismark Snyder and W. I. Snyder, for appellant. A. C. Hatch and J. H. McDonald, for respondents.

MINER, J. The allegations in this complaint are substantially the same as are contained in the case of Snyder v. Murdock (heretofore decided at this term) 59 Pac. 88, except that in this case 22 shares of stock in the Wasatch Irrigation Company, a corporation organized and existing under the laws of this state, stand in the name of Heber Rasband, and 2 shares of the same stock stand in the name of James Rasband, and 1 share of the same stock stands in the name of Frederick Rasband. the assignors. It also appears that certificates for said stock had not been issued by the company, but that the same remained in the custody of the water company, and was transferable only on the books of the company; that plaintiff believed, until defendant Murdock levied his attachment on said stock, that said stock was appurtenant to the land, and subject to an action then pending between plaintiff and part of the defendants, and therefore no immediate steps were taken to reduce the same to possession. Defendant Murdock levied upon, took possession of, and sold the stock in Wasatch county. The complaint alleges demand, refusal to deliver the stock, and right of possession in plaintiff, as assignee. The defendants entered their several demurrers to the complaint, which were sustained, and the complaint dismissed. This appeal is taken from the judgment.

Under section 1281, Rev. St. 1898, the title to water rights appurtenant to land pass by a conveyance of the land, unless expressly reserved in the deed; or such water rights may be treated as personal property, and separately conveyed. Irrigation Co. v. Ogden City, 8 Utah, 494, 33 Pac. 135. By the provisions of Sess. Laws 1896, p. 304, c. 87, § 2280, stock is declared to be personal property, which may be transferred by assignment in writing, and by delivery of the certificate. The respondents contend that the water stock levied upon and sold by the judgment creditors has never been taken into possession by the assignee, and was not included in the inventory attach

ed to the assignment, and that such assignment was void under section 2473, 2474, Rev. St. 1898. Substantially the same question was passed upon in the case of Snyder v. Murdock. to which reference has been had. An assignee for the benefit of creditors does not occupy the same position towards the personal property assigned to him as trustee for the benefit of creditors as does a purchaser or attaching creditor of such property with respect to the immediate delivery and change of possession of the same. Such assignee stands in the position of a trustee, and holds the assigned estate for the benefit of all creditors of the assignor. In a general assignment the title to all real and personal property of the assignor, as we have seen under the facts stated in the previous case, immediately vests in the assignee, whether mentioned in the schedule attached to the assignment or not, and it is his duty to reduce it to possession, and distribute the same to creditors, as provided by the statute. To do this the assignee should have sufficient time in which to obtain such possession. The rule that a sale or assignment of chattels, unaccompanied by a change of possession, is fraudulent per se, under sections 2473, 2474, Rev. St. 1898, as to execution creditors or subsequent purchasers of the vendor, does not necessarily apply to assignments for the benefit of creditors; but long delay in taking possession is a circumstance from which fraud may be inferred, but such inference may be explained and contradicted by proof. The recording of the assignment, and publishing notice thereof in the county where the property is located, and the assignors resided, is intended to give publicity to the act of assignment, and operates as constructive notice to all persons that an assignment has been made. In addition to this, actual notice of the assignment was given the attaching creditors prior to the commencement of their suit. The assignee, until the levy of the attachment, verily believed that the certificate of stock was appurtenant to the land belonging to the estate, and passed with it, to the assignee; and that such land, with the water right, was subject to an action between plaintiff and some other parties, which action was then pending; and therefore no immediate steps were thought necessary to reduce the certificates of stock into his actual possession. We are unable to discover any fraud or intentional wrongdoing on the part of the assignee. So far as appears, he acted in good faith. On the authority of Snyder v. Murdock, supra, we are of the opinion that the stock passed under the deed to the assignee, and that he was entitled to the possession thereof, as against the attaching creditors.

Lowe v. Matson, 140 III. 108. 29 N. E. 1036; Pitman v. Marquardt (Ind. App.) 50 N. E. 894; Faxon v. Durant, 9 Metc. (Mass.) 339; Meeker v. Felts (N. J. Ch.) 23 Atl. 672; Society v. Branch, 120 Mo. 226, 25 S. W. 218; Billings v. Parsons, 17 Utah, 22, 53 Pac. 730; section 2825, Rev. St. 1898. We are of the

opinion that the court erred in sustaining the demurrer and in dismissing the complaint. The case is reversed and remanded, with instructions to the district court to grant a new trial, overrule the demurrer, set aside the judgment, and proceed to trial on the complaint in accordance with this opinion. Appellant is entitled to costs.

BARTCH, C. J., and BASKIN, J., concur.

(20 Utah, 401) CLARK v. OREGON SHORT-LINE R. CO. (Supreme Court of Utah. Nov. 3, 1899.) CONTRIBUTORY NEGLIGENCE-PLEADING.

Although, as a general rule, in an action for damages for injuries resulting from negligence, contributory negligence is a matter of defense, and must be alleged and proved by defendant, yet, where plaintiff's testimony shows that his own negligence or want of ordinary care was the proximate cause of the injury, he will not be permitted to recover, even though the answer contains no averment of contributory negligence.1

(Syllabus by the Court.)

Appeal from district court, Fourth district; W. N. Dusenberry, Judge.

Action by William E. Clark against the Oregon Short-Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

P. L. Williams, C. D. Savery, and J. W. N. Whitecotton, for appellant. M. M. Warner, for respondent.

BASKIN, J. This is an action in which the plaintiff, who is the respondent, seeks to recover the value of a cow alleged to have been killed through the negligence of the appellant in running one of its freight trains. The answer denied the negligence of the appellant alleged by plaintiff. Contributory negligence on the part of the plaintiff was not pleaded in the answer. At the close of the testimony the appellant requested the trial court to instruct the jury to return a verdict in favor of defendant of no cause of action. This request was denied, and the jury returned a verdict in favor of plaintiff for $50. The only error assigned and urged by appellant is that said request was improperly refused.

It is well settled that the court may withdraw the case from the jury altogether, and direct a verdict for the plaintiff or defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it. Pool v. Southern Pac. Co. (Utah) 58 Pac. 330, and cases cited. In the case of Bunnell v. Railway Co., 13 Utah, 314, 323, 44 Pac. 927, 930, it is held that: "Generally, contributory negligence is a matter of defense, and must

1 Bunnell v. Railway Co., 44 Pac. 927, 13 Utah, 314.