Pearre Bros. v. Folb, 123 N.C. 239 (1898)

Nov. 15, 1898 · Supreme Court of North Carolina

123 N.C. 239

PEARRE BROS & CO. v. MIKE FOLB, B. R. TAYLOR, assignee of Mike Folb, and others.

(Decided November 15, 1898.)

Assignment — Attachment—Oaths—Estoppel.

1. Under the Act of 1898, Chapter 453, assignors in deeds of assignment are required in a mandatory way, to file under oath a schedule of all preferred debts, with particulars, within five days of the registration of the deed.

2. Oaths are to he taken and administered with the utmost solemnity, and this applies not only to the substance of the oath, but to the form and manner of taking and administering it required by Statute, Section 3809 of The Code. State v. Danis, 69 N. C., 383.

3. A recital in a bond given in attachment proceedings to the sheriff for the delivery of the goods, should the plaintiff recover judgment, that the sheriff had made seizure and levy of the goods, estops the ■ defendants to deny the sufficiency and validity of the seizure of the goods and levy of the attachments.

Civil action on money demand, tried before A lien, J., at May Term, 1898, of Cumberland Superior Court.

Attachment proceedings had been taken out in this case. There were eleven other cases pending on the docket, instituted by creditors of Folb, against Folb and his assignee, B. R. Taylor, in all of which attachments had been taken out and were awaiting trial, and were instituted to have declared fraudulent and void the deed of assignment from Folb to Taylor dated July 12, 1897, and also to have declared fraudulent' and void the schedule and preferences under said assignment. These eleven cases -were consolidated by order of the Court with this case and the whole tried together.

The debts claimed by the respective plaintiffs were not denied.

The following issues were submitted to the jury:

1. Was the deed of assignment from Folb to Taylor made with intent- to hinder, delay or defraud the creditors of Eolb, or any of them?

Answer — No.

2. Are the preferred debts in first class in said deed (naming them) and debts to M. Silver in second class creditors, or any of them fictitious ?

Answer — No.

3. Did the Sheriff of Cumberland levy the attachments in his hands on the personal property in the hands of the assignee, and was said property replevied by the defendant Taylor, assignee ?

Answer — Yes, under instructions.

4. Was a duly sworn schedule of preference filed by the defendant Folb in the office of the Clerk of the Superior Court of Cumberland county, and is such schedule in compliance with the laws of North Carolina regulating assignments?

Answer — No, under instructions.

The return of the Sheriff upon the attachments recited that he had executed the warrant of attachments by levying upon and taking into possession the goods; and the defendant. Taylor, assignee, with sureties, executed bonds to the Sheriff, which contained the same recitals.

The defendants proposed to prove that in some of the cases, the Sheriff had not taken possession of the goods.

The evidence was objected to on the ground that the defendants were estopped to deny the validity of the levy and seizure of the goods.

His Honor so ruled, and directed the response to the third issue accordingly, in the affirmative.

Defendants excepted.

In swearing to his schedule, there was no Bible used. The Justice of the Peace, who administeied the oath, said to Eolb: ‘ ‘Hold up your right hand. You do solemnly swear or affirm that the matters and things contained in the paper writing are correct, so help you God !”

Eolb was not a Quaker, nor a Moravian, nor a Dunk-ard, nor a Mennonist, but a Jew. He did not ask to affirm, and testified that he had no conscientious scruples against being sworn on the Bible.

The plaintiffs insisted that the oath was not administered and taken in accordance with the requirements of our Statute, and was invalid.

His Honor so ruled, and directed the response to the fourth issue accordingly, in the negative.

Defendants excepted.

Upon the issues as found, his Honor rendered judgment in favor of the plaintiffs in the respective cases upon the several replevin bonds.

Defendants appealed.

Messrs. H. L. Cook, Geo. M. Bose and C. W. Broacl-foot, for defendants (appellants.)

Messrs. H. MoD. Robinson, B. P. Buxton, McRae & Day, E. K. Bryan and S. H. MacRae, for appellees.

MONTGOMERY, J.:

The Act of 1893, Ch. 453, in a mandatory way, requires the assignors in deeds of trust or deeds of assignment for the benefit of creditors to file under oath a schedule of all preferred debts, with particulars, within five days of the registration of the deed. The first question presented for decision in this case is one that relates to the sufficiency and validity of the oath which the assignor made when the schedule of preferred debts was filed. The assignor was a Jew. When the justice of the peace administered what the defendants insist is a valid oath, that officer said to the assign- or “hold up your right hand”; upon which being done, the justice said “you do solemnly swear or affirm that the matters and things contained in the paper writing are correct, so help you God.” There was no Bible used. The affiant was not a Quaker, nor a Moravian nor a Dunkard, nor a Mennonist; he did not ask to affirm, nor did he express any conscientious scruples at touching the Bible, or being sworn on that book, but, on the contrary, said he had none.

That proceeding did not constitute a valid oath under the laws of North Carolina. The preamble to Chapter 40 of Volume 2 of The Oocle is in these words: “Whereas lawful oaths for the discovery of truth and establishing right are necessary and highly conducive to the important end of good government, and being most solemn appeals to Almighty God as the Omniscient witness of truth and the Just and Omnipotent Avenger of falsehood, such oaths therefore ought to be taken and administered with the utmost solemnity.” This “solemnity” applies not only to the substance of the oath, but to the form and manner of taking it and of administering it, as was said by the Court in the case of State v. Davis, 69 N. C., 383. And therefore the Statute, Section 3809 of The Code, provides that “Judges and justices of the peace and other persons who may be empowered to administer oaths shall (except in the cases in this chapter excepted) require the party sworn to lay his hand upon the Holy Evangelists of Almighty God in token of his engagement to speak the truth, as he hopes to be saved in the way and method of salvation pointed out in that blessed volume, and in further token that if he should swerve from the truth he may be justly de-priverl of all the blessings of the G-ospel and made liable to that vengeance which he had imprecated on his own head, and he shall kiss the Holy Gospel as a seal of confirmation to the said engagement.”

The only exception made in the statute to the general rule is “where the person to be sworn shall be conscientiously scrupulous of taking the Book bath in the manner aforesaid, he shall be excused from laying hands upon or touching the Holy Gospels”; and the oath required in such cases shall be administered in a certain prescribed manner in Section 3310 of The Code is equally as solemn as the general law requires. And Quakers and some others, with conscientious scruples about swearing at all, “are permitted to affirm.” In State v. Davis, supra, the court further said “if the usual form of oaths upon the Holy Evangelists is dispensed with and an ‘appeal’ .or ‘affirmation’ is substituted, it must appear that the person sworn had conscientious scruples, else the appeal or affirmation is invalid.” That decision has never been altered or modified by this Court.

The only other question necessary for us to decide is as to the validity of the levy aud seizure by the sheriff of the goods of the defendant Folb uuder the warrants ■of attachment. The defendant Taylor, the assignee, with sureties, executed to the sheriff a bond for the delivery of the goods, should the plaintiffs recover judgment in the action against Taylor, the assignee of Folb, and in that paper writing they recited the fact that the sheriff had made seizure and levy of the goods. The defendants are estopped to deny the sufficiency and validity of the seizure of the goods and levy of the attachments. Hunley v. Filbert, 73 Mo., 34; 7 Am. & Eng. Enc., 8. There is no error and the judgment is

Affirmed.