3. SAME-DELAY.

A delay of one year in the sale of property assigned for benefit of creditors is not an unreasonable delay.

Hereford & Lovell, for appe'ant, E. Rochester. J. A. Anderson, for appellee, M. J. Sullivan.

BARNES, J. This was a suit to set aside a conveyance made by the appellees of the property described in the conveyance, on the ground that it was executed to hinder, delay, and defraud creditors, in violation of section 20 of chapter 36 of the Compiled Laws of the territory of Arizona. The appellees, it appears, were indebted to L. Zeckendorf & Co. in the sum of about $1,500, and to the appellant in the sum of $960, and to two other creditors to the amount of about $800. The deed conveys to Albert Steinfield, of the firm of L. Zeckendorf & Co., in trust to secure the payment of the said indebtedness. It provides that six months from its date sufficient of the property is to be sold at public sale to pay one-half of the indebtedness, and, at the expiration of one year, the remainder is to be sold, and the proceeds to be paid on the remainder of the indebtedness. The grantors were to retain possession of the property until sales were made. The deed was executed on the first day of July, 1885, and on the seventh day of September, 1885, appellant obtained judgment against appellees for the amount of their debt. Execution was issued and returned nulla bona. Appellant then commenced this suit to set aside the deed of assignment, on the ground that it was made with the intent to hinder, delay, and defraud creditors. No evidence was introduced outside of the deed, and it is not claimed that there was any fraud in fact in the execution of the deed; but it is insisted that the deed upon its face, as a matter of law, is fraudulent and void.

Section 20 of chapter 36 of the Compiled Laws of Arizona is similar to statutes which have been enacted in nearly all the states, and is an enactment of the statute 13 Eliz. c. 5, commonly known as the "Statute of Elizabeth." Probably there is no legislation which has been engrafted onto the common law of England which has been more discussed by the bar, and considered by the courts, and written about by the commentators of the law. Prior to that statute the owner had absolute dominion over his own property, to do with it according to his own good will and pleasure; and, within the limits prescribed by the law, might make any disposition of it. He might sell it or give it away; he might contract debts to be satisfied out of it; confess judgments and create liens upon it. Bump, Fraud. Conv. 13. This act of 13 Eliz. is a limitation upon that right, and the owner may not sell and conyey his property if in so doing he have the express or implied intent to hinder, delay, or defraud his creditors. Where it is charged that a conveyance is of this character, the onus is upon the creditor who assails the assignment to show that it is in plain violation of the law. Townsend v. Stearns, 32 N. Y. 209; Kruse v. Prindle, 8 Or. 158. The same fair and reasonable rules of construction must be applied to such conveyances as are adopted in ascertaining the meaning of other instruments. Whipple v. Pope, 33 Ill. 334; Bump, Fraud. Conv. 365. This statute was carefully construed in Meux v. Howell, 4 East, 1, 13. In the court of the king's bench Lord ELLENBOROUGH there held that "while every assignment of a man's property, however good and honest the consideration, must diminish the fund out of which satisfaction is to be made to his creditors, yet that assignment must be devised of malice, fraud, or the like to bring it within the statute." In the case of Pickstock v. Lyster, 3 Maule & S. 371, it was held that "the actual intent to defeat the particular creditor of his execution was not considered of itself sufficient to defeat the statute, the assignment being for the benefit of all the creditors." The supreme court of the United States in Reed v. McIntyre, 98 U. S. 507, quotes this case with approbation, and lays down the doctrine that where the pro

visions of the assignment are consistent with an honest purpose to deal honestly and fairly with the creditors, the assignment reserving for the benefit of the debtor or his family no interest in the property, and imposing no improper restrictions upon its speedy sale and satisfaction of the debts, the consequent temporary delay in the prosecution by particular creditors of their claims by the ordinary legal remedies was regarded as a necessary and unavoidable incident of a discharge by a debtor of his duty to creditors. In Pickstock v. Lyster, supra, Lord ELLENBOROUGH held that the deed was not fraudulent, but was for the fair purpose of equal distribution; and BAGLEY, J., said: "It seems to me that this conveyance, so far from being fraudulent, was the most honest act the party could do.” To the like effect are the authorities generally, as will be seen from an examination of the adjudicated cases cited in Burrill, Assignm. § 319, and 1 Amer. Lead. Cas. 71, and Reed v. McIntire. The same doctrine has been decided in New York, Wilder v. Winne, 6 Cow. 284: Wilder v. Fondey, 4 Wend. 100; in Louisiana, U. S. v. United States Bank, 8 Rob. (La.) 402; in Mississippi, Farmers' Bank v. Douglass, 11 Smedes & M. 469; in North Carolina, Hafner v. Irwin, 1 Ired. 490,-in that case a portion of the creditors were excluded from the benefits of the assignment, and yet the court held that it did not fall under the operation of the statute; in Virginia, in Dance v. Seaman, 11 Grat. 778; and in Florida, Cotton v. County Com'rs, 6 Fla. 662; in Michigan, Hollister v. Loud, 2 Mich. 316; in Indiana, Church v. Drummond, 7 Ind. 17; in Illinois, Gardner v. Commercial Bank, 95 Ill. 298; in Ohio, Hoffman v. Mackall, 5 Ohio St. 124.

The doctrine that a man in failing circumstances, unable to pay his debts, may assign his property for the benefit of all of his creditors, provided he did so in good faith, has become too well established to now be questioned. If, however, a fraudulent intent be proved, or if the terms of the assignment itself show that a fraud has actually been committed, the assignment is in violation of the statute, and void.

It is claimed that this conveyance is fraudulent for the reason that it leaves the possession of the property, from the time of the assignment to the time of the sale provided for, in the grantors. This would of itself be fraudulent if personal property were assigned in the conveyance. The rule, however, is different with reference to real estate. Burrill, Assignm. §§ 276, 277, and notes and cases cited; Bump, Fraud. Conv. 121, 122, and cases cited. "To hold that the possession of real estate by the vendee is per se presumptive evidence of fraud would be in effect to abolish the distinction known and acknowledged between personal and real property, and to lose sight of the different methods of conveying the title to the two kinds of property."

It is contended, further, that the deed is fraudulent on account of an unreasonable delay of the time of the sale. The deed provides that after six months enough of the property shall be sold to pay one-half of the indebtedness, and at the end of twelve months the balance shall be sold. It is the law that the postponement to an unreasonable time of the time of sale will avoid the assignment. If the period be reasonable, however, such a stipulation will be valid. There has been much discussion as to what constituted unreasonable delay to avoid the assignment. The authorities will be found in Burrill, Assignm. §§ 214, 215, and cases cited. The overwhelming weight of authority has agreed that less than one year is not unreasonable. While cases may be found holding that a longer term than one year does not invalidate the assignment, yet those cases are based upon peculiar circumstances, and are against the great weight of authority. See Bump, Fraud. Conv. 412, and cases cited.

The assignment before us places the property in the hands of a trustee, to be devoted, so far as this evidence shows, to the payment of all the debts of the grantors, with no evidence of fraud in fact. The court must assume

that this conveyance was made in good faith, for the benefit and for the protection of the creditors, rather than for their injury, and the court cannot say that this conveyance is fraudulent as a matter of law. The judgment of the court below is affirmed.

PORTER, J., concurs.

NOTE.

In Perry Ins. & Trust Co. v. Foster, 58 Ala. 502, an assignment for the benefit of creditors, of a plantation, together with the personal property used in cultivating crops upon it, was made in the spring, and provided that the sale should be delayed until the first of December following; and that meantime the property should remain in the possession of the assignors, to be used in cultivating the crops; and that the crops, when gathered, should be delivered to the assignee, and distributed under the assignment. It appearing that such property could not be advantageously rented in the spring, and would be sacrificed by a sale then, or if stripped of the personal property, the provision in the assignment was held valid.

Respecting the question of fraudulent interest in conveyances, see Lewin v. Hopping, (Cal.) 8 Pac. Rep. 73, and subdivision 4 to note, 80; Burr v. Clement, (Colo.) 9 Pac. Rep. 633, and note, 639-641; and Ross v. Sedgwick, (Cal.) 10 Pac. Rep. 400.

As to the burden of proof, see Lewin v. Hopping, (Cal.) 8 Pac. Rep. 73, and subdivision 4 of note, 76.

(2 Ariz. 89)

WOFFENDEN v. CHAROULeau.

(Supreme Court of Arizona. May 30, 1886.)

COURTS-POWER TO RENDER DECISION IN VACATION.

The supreme court has power to render a decision, and cause the judgment to be entered during vacation, where the cause has been regularly heard and submitted during the term.

Motion to docket cause, and set same down for hearing.

F. W. Gregg and H. R. Jeffords, for appellant. Farley & Franklin and Alex. Campbell, for respondent.

BARNES, J. This cause was submitted to this court at the January term, A. D. 1885, in September. During the vacation of this court an opinion was filed and judgment entered affirming the judgment. Appellant now moves this court to docket the cause, and set the same down for hearing, on the ground that the cause is still pending and undecided, as the court has no power to enter its judgment in vacation.

Chapter 48 of the Compiled Laws is the procedure act in civil cases governing the supreme as well as the district and other courts. Section 146 of that act provides that "a judgment is the final determination of the rights of the parties in the action or proceeding, and may be entered in term or vacation." This law is broad enough to include all courts, and all judgments. Section 637 of the same chapter provides that the supreme court make rules not inconsistent with the laws of the territory for its own government, etc. Rule 37 of the supreme court provides that cases argued and submitted in the term may be decided, and the decision and judgment be rendered, in vacation. This rule was promulgated in 1879. and has remained in force ever since, and has been acted upon and acquiesced in until now. We do not think this rule to be inconsistent with the laws of the territory or the acts of congress. The court has power to render a decision, and cause judgment to be entered, and file its reasons therefor, in vacation, in a cause which had been regularly heard and submitted to the court in the term, and taken under advisement. Whatever the mere form of the entries may be, that is what action under said rule amounts to. People v. Jones, 20 Cal. 50.

The motion is denied.

PORTER, J., concurs.

SHIELDS, C. J. I do not think section 146 of chapter 48, cited by my Brother BARNES. has reference to a judgment of the supreme court. It has application solely to district courts. But section 637, cited, confers authority on the supreme court to declare by rule that decision and judgment may be rendered in vacation. In the exercise of such authority, rule 37 was long ago adopted, and must be regarded as right and correct until abrogated or changed. I therefore concur in the above opinion, but, in so doing, I cannot help expressing my disapproval of the rule. In my opinion, cases should be heard and determined in term.

(2 Ariz. 88)

BURTER v. COUNTY OF PIMA.

(Supreme Court of Arizona. May 30, 1886.)

APPEAL-CONFLICT OF EVIDENCE.

Where the evidence is conflicting, the decision of the lower court will be affirmed. Hoover, King & Satterwhite and Haynes & Styles, for respondent, George W. Burter. Hereford & Lovell, for appellant, County of Pima.

PORTER, J. The cause was tried by the court without intervention'of a jury. Judgment was rendered for the plaintiff. From the judgment, and from an order denying motion for new trial, defendant appealed. The evidence as to value of the services for printing the delinquent list, for which this action was brought, varied very materially. It was the province of the judge to determine the value; and it is well established that where there is a substantial conflict the judgment will not be reversed on the ground that the evidence does not warrant it. Passim.

Judgment and order denying motion for new trial affirmed.

SHIELDS, C. J., and BARNES, J., concur.

(13 Or. 418)

FRENCH v. CRESSWELL.

(Supreme Court of Oregon. May 17, 1886.)

1. TRIAL-VERDICT-VALIDITY.

In an action in which two persons were joined as defendants, the jury brought in a verdict for the plaintiff, the title of which gave the full names of the parties, but with a line drawn through the name of one of the defendants. Held, that the intention of the jury was sufficiently clearly shown, and that the verdict was good against the defendant whose name was allowed to remain undisturbed alone. 2. ANIMALS-TRESPASS-SHEEP-FENCE-UMATILLA COUNTY.

Title 1, c. 15, Misc. Laws, does not apply to Umatilla county, and, under the local law which includes that county, it is not necessary that the plaintiff's land should be fenced, in order to maintain an action of damages for trespass by sheep. 3. TRESPASS-OWNERSHIP-POSSESSION-QUESTION FOR JURY.

The question whether a plaintiff who has entered upon lands under the homestead laws has shown ownership or possession of the land, entitling him to maintain an action of trespass, is a question of fact which is properly left to the jury.

4. MASTER AND SERVANT-ACT OF SERVANT-RESPONSIBILITY OF MASTER.

The master is liable for the act of his herder in allowing sheep to trespass upon the lands of another land-owner, even though the herder has been expressly directed to keep the sheep off such lands.1

Appeal from Morrow county.

J. J. Ballory, for appellant, P. C. Cresswell. L. Bleux, for respondent, Hannah French.

THAYER, J. The respondent commenced an action against the appellant and one P. C. Thompson in the justice's court for Heppner precinct, then

1 See note at end of case.

Umatilla county, Oregon. She alleged in her complaint in said action the following: (1) That at all time hereinafter mentioned in this complaint plaintiff was in possession of, and entitled to the possession of, the following described parcels of real estate, to-wit: The S. of S. W. 4 N. W. 4 of the S. W. of section 9, and the N. E. of S. E. of section 8, township 3 S., of range 28; also the W. of N. W. 1, the S. E. 4 of N. W. 4, and the N. E. of S. W. 4, of section 8, township 3 S., of range 28 E. of the Willamette meridian,—and all situated in the county of Umatilla and state of Oregon. (2) That on divers days and time between the first day of January, A. D. 1884, and the date of the commencement of this action, the defendants unlawfully and willfully permitted their band of sheep to be herded, and unlawfully and willfully did herd the said band of sheep, upon the above-described parcels of real estate, of which plaintiff was disturbed in her possession; whereby plaintiff's grass on said land was trod down and eaten up, injured and destroyed; and whereby plaintiff was prevented from renting said described land, and using the same for her own and lawful purpose, and was hence subjected to great damages, in the sum of $50. Whereupon plaintiff prays judgment for said sum of $50 and her costs and disbursements. defendants therein filed an answer to the said complaint, in which they specifically denied all the allegations thereof. The plaintiff in the action recovered a judgment against the defendants for $30 and costs, from which judgment the defendants appealed to the circuit court for the county of Umatilla. After the appeal was perfected the county of Morrow was created by an act of the legislative assembly of the state, which included within its territory said precinct of Heppner, and the case was transferred to that county, and there tried by jury, who returned a verdict for the plaintiff for $16.75, upon which the judgment appealed from was entered.

The

The verdict was quite informal. It was entitled as follows: "In the Circuit Court of the State of Oregon for Morrow county,"-with the full names of the parties plaintiff and defendant; but a line was drawn across the name of P. C. Thompson, and it read: "We, the jury, find a verdict for the plaintiff herein, the sum of ($16.75) sixteen 75-100 dollars, "--signed by the foreman of the jury. The appellant's counsel contends that the verdict was so informal that it was a nullity, but I do not think that the defect was so great as to affect the substantial rights of the appellant. It is apparent that the jury intended to render a verdict against the appellant alone, and I think it was sufficient to authorize the judgment to be entered against him.

The appellant's counsel presented several points upon the argument upon which he claimed the judgment should be reversed. The first and main point is that the complaint was defective in not alleging that the respondent's land was fenced, and cited in support of it the case of Campbell v. Bridwell, 5 Or. 311, where it was held that a complaint in trespass by cattle must set forth that the locus in quo was inclosed by a fence built in substantial compliance with title 1, c. 15, Misc. Laws. That decision, it will be observed, was in accordance with the construction which the court placed upon the statute referred to. The court did not, as I understand it, intend to hold that in the absence of the statute a party would be obliged to fence his land before he could maintain an action for damages for trespass by cattle thereon. The common law required the owner of cattle to keep them from going upon the land of another, whether fenced or not, and that would be the rule in this state, in the absence of any statute changing it. But the appellant cannot claim the benefit of said statute in this case, as the act expressly exempted Umatilla county from the effect of its provisions. The legislature passed a local law upon that subject which included Umatilla county, but it required no fence as against sheep. It only included certain other specified animals. I do not think the point was well taken.

The next point which the appellant's counsel attempted to make was that