OPINION OP THE COURT.
McMILLAN, J.In a companion case, this conrt decided at the last term that the defendant haying objected to a reference to a master to take the testimony and to report the same with his findings of law and fact -at the time it was made by the conrt, and there being no right of appeal, and the objection haying been renewed when the trial of the canse was moved before the master, that the defendants were not bound by the findings of the master, nor were such findings-in any view conclusive on the court. Early Times Distillery Co. v. Zeiger, 66 Pac. 532. Citing Kimberly v. Arms, 129 U. S. 512-524; Palethrop v. Palethrop, 39 Atlantic 489-90; Medler v. H. & O. H. Co., 6 N. M. 343; Code Civil Procedure, sec. 2685, subsecs. 138,139; Terpening v. Holton, 9 Colo. 306.
All of the questions, therefore, involved in this case, came before the district court, uncontrolled, in any manner, by the master’s finding-, which was a conclusion of law, to the effect:
“That the assignment by the defendant Zeiger to the defendant Flournoy, of the contract, by Armijo and wife, for the conveyance of certain real estate to the said Zeiger, dated the twelfth day of November, 1890, which assignment >vas made prior to the eighth day of April, 1895, was and did operate as an involuntary-assignment of all the property of said Zeiger for the general benefit of all his creditors, and recommended that the property and effects of said Zeiger be administered and distributed under the direction of this court in accordance with the provisions of the statute relative to involuntary assignments.”
The defendants excepted to this finding, first on the ground that it is not sustained by the facts in evidence and it is not justified by the law, second because upon the facts as shown by the evidence the statute does not warrant the administration and distribution under he direction of the court of the property mentioned in said contract, as recommended by the master.
To enable the plaintiffs to avail themselves of the conclusion of law found by the master, it must appear that the case is within the provisions of Chap. LXVII of the Laws of 1899. Section one provides:
“Every sale, mortgage or assignment made by debtors, and every judgment suffered by any defendant, or any act or device done or resorted to by a debtor in contemplation of insolvency and with a design to prefer one or more creditors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all of the property and effects of such debtor, and shall inure to the benefit of all his creditors, except as hereinafter provided.”
Section two provides: “All such transfers as are herein declared to inure to the benefit of creditors generally, shall be subject to the control of courts of equity upon the bill of any person interested, filed within six months after the mortgage or transfer is legally lodged for record, or the delivery of the property or effects transferred.”
The assignment which is the subject of this controversy, was made on the twenty-second day of February, 1895. The land contract which was transferred by such assignment was delivered to the assignee thereof on the same date, to-wit, February 22, 1895. This action was not commenced until the seventh day of October, 1895, seven and a half months after the making of the assignment complained of, and after the delivery of the contract which was transferred by such assignment.
Do these transactions come within the provisions of the statute? “The property or effects transferred,” as far as this action relates, was the land contract. The assignment by Zeiger disposed of whatever interest, legal or equitable, he had in the contract, and by the assignment it. was transferred to the defendant Flournoy.
It Avould seem clear, from a reading of the statute, that in order to reach the contract, the action must of necessity be commenced by filing the bill within six months after the delivery of the contract in question by Zeiger to Flournoy. This was not done. Seven months and a half had elapsed between the delivery of the property or effects transferred, and the time of filing of the bill in this action.
2 Another view of the case, contended for on behalf of plaintiffs, is to the effect that the assignment of the land contract should have been recorded, and the fact that it was not recorded permits the plaintiffs to avail themselves of the provisions of the statute. We are of the opinion that the assignment of an unrecorded land contract, which assignment was neither acknowledged nor proven in any form so as to entitle it to be recorded, is not such an instrument as the statute requires shall be placed of record. Chap. X, Laws of 1887; Compiled Laws, secs. 3933, 3955.
Irrespective of its want of acknowledgment or proof of execution the assignment in this case is not such an instrument as the law contemplates should be recorded. Nelson v. Boyce, 7 J. J. Marshal 401, 23 Am. Dec. 411.
The plaintiffs have not brought themselves within the provisions of Chap. LXYII of the laws of 1889.
The ruling of the district court was therefore correct in sustaining the exception of the defendants on the ground that the facts in evidence did not justify the conclusion of law found by the master.
Again, we may well query whether after a general assignment has been made for the benefit of creditors, and the assignee has qualified and entered upon the discharge of his duties, any party can maintain an action under a fair construction of the statute upon which this action is founded, except by or through the assignee.
There is another question which goes somewhat to the merits of this case. It is the value of the land contract under consideration on the twenty-second of February, 1895, at the time it was assigned by Zeiger to Flournoy. It is not alleged on the part of the plaintiffs that it had any value, nor was any proof given before the master tending to show that the contract in the hands of Zeiger was of any value whatever. It is alleged in defendant’s answer, which stands. uncontroverted, that Zeiger had forfeited and lost all right which he had under and by virtue of the contract, to demand and receive a deed to the premises in accordance with the terms thereof. This seems to be predicated upon the following condition contained in the contract itself, "to-wit:
“And it is further agreed between the parties, to these presents, that time is the essence of this contract, and if default be made in fulfilling this agreement or any part thereof on the part of said party of the second part, then in that case the said parties of the first part their heirs, executors, administrators or assigns shall be at liberty to dispose of the said property to any other person in tbe same manner as if tbis contract never bad been made.”
It can not be urged that because Zeiger bad given bis note for tbe purchase price stipulated in tbe contract, that be bad made payment thereby for tbe property agreed to be sold, as tbe contract contains a special agreement “that tbe said party of tbe second part will pay tbe sum of money in said promissory note expressed, according to its tenor and effect.”
Time being of tbe essence of tbe contract, it would not be in tbe province of a court of equity to compel specific performance of this contract. Bullock v. Adams, 20 N. J. Eq. 372; Carter v. Phillips, 144 Mass. 100; Wells v. Smith, 7 Paige 22, 27.
“Time, in tbe performance of an agreement either for tbe sale or tbe purchase of real property, is always material, and a court of equity will not, any more than a court of law, excuse laches and gross negligence in tbe assertion of a right to a specific performance. But time is not of tbe essence of the contract unless made so by the terms of the contract, and therefore, although there may not (when time has been made essential), be performance at tbe day, if tbe delay is excused, and tbe situation of tbe parties or tbe property has not changed so that injury will result, and tbe party is reasonably vigilant, tbe court will relieve him from tbe consequence of tbe delay and grant specific performance.” Hnbbell v. Von Schoening, 49 N. Y. 326, 330. Citing Radcliffe v. Warington, 12 Vesey 326; Moore v. Smedburgh, 8 Paige 600; Edgerton v. Peckbam, 11 Paige 335.
“Time may be made of tbe essence of tbe contract by express stipulation, or it may become essential by considerations arising from tbe nature of tbe property or tbe character of tbe interest bargained. It must affirmatively appear that tbe parties regarded time or place as an essential element in their agreement, or a court of equity will not so regard it.” Sexcombe v. Steele, 20 How. (U. S.) 94, 104.
“There is no doubt that time may be of the essence of the contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication from the yery nature of the property of the avowed objects of the seller or the purchaser.” Taylor v. Longworth, 14 Peters (U. S.) 172, 174.
If Zeiger had lost all right under the contract made with Armijo and wife, then at the time of the assignment made by him to Flournoy, the contract in question had no value whatever. If it had no value, plaintiffs have suffered no damage, and the cause of action set forth herein is not maintainable.
If Zeiger, by reason of financial embarrassment, was unable to pay the purchase price stipulated in the contract made with Armijo, and he had lost all right to enforce such contract, either in law or equity, could the assignment of the contract to Flournoy, for the use and benefit of the creditor bank, with the understanding that he, Zeiger, should receive credit for all moneys realized over and above the cost of perfecting title in Flournoy, be said to be a transaction with the design to prefer one creditor, to the exclusion in whole or part of others, or that it was carried out in contemplation of insolvency? We are of the opinion that it can not be so held. There is no evidence whatever in the case that any of the plaintiff creditors of Zeiger could have perfected title under the contract to the property in controversy. Under the pleadings and proof there is no presumption that they could. The fact that the bank was able to procure a deed of conveyance from the widow and heirs of Armijo, of the premises in question, does not necessarily imply that any other plaintiff creditor herein could do the same.
Zeiger made his assignment on the seventh of April, 1895. The assignment of the contract was executed and delivered six weeks previous to that time. The bank continued to lend him money, as appears from the testimony, as late as the month of March. We find nothing in the whole case to indicate that Zeiger had reason to belieye or know that he was insolvent at the time of the making of the assignment in controversy, nor that such assignment was made in contemplation of insolvency.
For the foregoing reasons, the judgment of the court below should be affirmed. And it is so ordered.
Mills, C. J., Parker and McFie, JJ., concur.