OPINION OF THE -COURT.
MILLS, G. J.While numerous errors are-assigned in this case, we need only consider the point as to whether .or not the assignee Weaver, on September 1, 1903, made a valid and binding sale of the lots in question to Brooks for the ¡Blanchard Meat and Supply Company. If he did, then the District Court of Bernalillo County should have continued the injunction against Frank H. Moore, assignee, and should have ordered him to give a deed to the property to the Western Meat Company, the successor in interest of the Blanchard Meat and Supply Company, on that company paying the consideration agreed upon therefor/ while on the other hand, if the alleged'purchase and sale of the lots was not a valid one, then the court very properly dissolved the injunction and dismissed the petition.
An examination of the deed of assignment executed by Zeiger to Weaver, shows that it contains a provision that: “It is hereby declared the purpose of this assignment that the said estate and property of the said party of the first par/ shall.be vested in the party of the second part in trust to be administered under and in accordance with, the laws of the Territory of New Mexico, regulating assignments and not otherwise.”
• Previous to the session of our legislature 'held in 3.S89, there were no laws in- this Territory regulating assignments of the property of a debtor for the benefit of his creditors, but that legislature passed quite exhaustive acts regulating both voluntary and involuntary assignments. These laws are Chapters 67 and 71, Laws of 1889, and it is under these acts which have been compiled as Sections 2,818 to 2,870, inclusive of the Compiled Laws of 1897, that the assignee was acting.
It is held in Schofield v. Folsom, 7 N. M. 608, that the voluntary assignment act, “was .evidently designed by the legislature to form a complete code of procedure for parties wishing to abandon their estates to their creditors.”
Section .2857, Compiled Law's of 1897, (which is a part of the voluntary assignment act), provides, that the District Court, or the judge thereof, in vacation, shall make an order for the sale of all the real and personal estate conveyed by any deed of assignment either for cash or upon reasonable credit, and upon such other terms and notice as shall appear to the court or judge to be most advantageous to all the parties in interest, and shall by-order direct the nature of the security to be taken at sales made by assignees. The law also required that before any sale of such real estate should be made, the assignee should give bond with at least two good securities to be approved by the court, or the judge thereof, in vacation, in an amount equal to the value of the real estate to be sold, conditioned that the said assignee will faithfully make the sale under such order and duly account for the proceeds thereof.
An examination of the transcript before us, nowhere discloses that the assignee, Weaver, before attempting to sell the real estate in controversy ever applied to the District Court or to the judge thereof in vacation, for an order authorizing him to sell such real estate, nor does it appear that he ever gave the bond required by law to be given before such sale was made. The facts, as nearly as we can gather from the transcript, seem to be, that the assignee Weaver, sold and delivered some of the personal property belonging to the estate to Brooks, for the Blanchard Meat and Supply Company, and that he also agreed to convey the real property in question when the title to it was cleared. That an actual sale was not made seems to be proved by the answers of Brooks to certain questions propounded to him -on cross examination. They can be found on page 40 of the printed transcript and are as follows :.
Q. Would you have paid the $2,000, and taken a deed for the property at the time you say the purchase was made without having the tax sale against the property cleared up?
A. Yes, if we could have been protected by a .good and sufficient bond.
Q. You wouldn’t have been willing to pay it though without a bond ?
A. No, because it would have been just like accepting the property with an incumbrance against it.”
Doubtless both Weaver, as assignee, and Brooks, intended after the title to the propert]'- in controversy was cleared, to 'apply to the court for an order allowing it to be sold, but from the above questions and answers it cannot well be contended that an actual bona fide sale was made by the assignee on September 1, 1903, of the real estate, especially as no money was paid to bind the bargain. It will be noted that although the judgment removing the cloud caused by the sale of the property for taxes was finally determined and entered of record oh November 9, 1905, and Weaver did not resign as assignee for more than a year after the entry of the judgment removing the cloud, still no application was ever made to the court for an order allowing the sale to be made, or for the confirmation tbqreof, if a sale had been previously made.
If we had no statutes regarding voluntary assignments, possibly the alleged sale by the assignee to Brooks would be upheld, but as this assignment is under the statutes of this Territory and as the important provisions of the act regulating sales, as above set out, have not been' complied with, we are of the opinion, that the trial court very properly dissolved the temporary injunction and denied the relief asked for.
There being no error in the judgment of the court below, the salhe is affirmed; and it is so ordered.
Cooley and Mechem, J. J., did not hear the argument and took no part in this decision.