Drain v. Mickel

Woodward, J. -The act of January 29th, 1857, (chapter 254, Statutes of 1857, 430), enacted to secure the faithful execution of assignments, for the benefit of creditors, provides that the assignee shall give notice of his appointment in a manner provided, and send a notice thereof to the creditors, and shall forthwith file, with the clerk of the district court, in the county where the assignment is recorded, a true and full inventory and valuation of the property assigned, under oath, or affirmation, so far as the same has come to his knowledge, and shall enter into bond with the clerk, for the use of the creditors, in double the amount of the inventory and valuation, with sureties approved by the clerk. By section twelve, it is provided, that if the ássignee die, before the closing of his trust, or in case the assignee fail or neglect, for the period of twenty days, after the making of any assignment, to file an inventory and give bond, as before provided, on the application of any person interested, as creditor or otherwise, the county judge shall appoint some one or more persons, to execute the trust embraced in the assignment. This is the portion of the act upon which the present questions arise. It is desirable that an explanation should be given of the objection made to the inventory, that specific items were not given, such as the number, pairs, &c., and also in relation to the real estate; and as a copy of the inventory is made a part of the case, this can be shown. The following are examples: [445] Lot of prints,........• • •............§208 27 “ “ silks, gloves, ribbons............36 98 “ “ pants, coats and vests,..........500 15 “ “ hats and caps,........ 63 00 Three lots in Plattsmouth, Nebraska territory, are mentioned as of numbers unknown, and of a value unknown. Lots in towns, and lands in the state of Iowa, are not valued, but are described in more or less accurate degree, and are stated to be encumbered to their full value. The object of the act, as expressed in its title, is to amend chapter sixty-two of the Code, and to close up assignments for the benefit of creditors. And as expressed on its face, and in its provisions, we may add, that it is to secure the faithful and more prompt execution of such trusts. By section seven, the assignee is rendered subject at all times, to the order and supervision of the district court, and- the latter may cause him to file reports, at any time, of the situation of the trust, and he is to file additional inventories, from time to time, of any further property which may come into his hands. Assignments for the benefit of creditors, are voluntary on the part of the debtor. No authority can compel him ; and when made, they partake of the nature of a private contract. The assignee derives his authority entirely from the grantor, and the appointment carries with it an actual, and not an imaginary, nor theoretical, trust and confidence. The assignee is the choice of the debtor, in whom to entrust his property, and his relations with his creditors. Under this view of the relation, we should not expect the legislature to go further than to regulate, direct, and secure a performance of the trust. Heretofore it has fallen within the province of a court of chancery, to supply the place of a trustee, ■when the trust was likely to fail for the want of one. But this act has transferred this authority to the courts of law, in the instance of assignments for the benefit of creditors. It seems to us, that it is intended that this power should be brought into exercise, when there is likely to occur a [446] failure of the trust, and not when there is merely an imperfect or defective performance of the duty prescribed. Accordingly, the statute enacts, that when the assignee dies, before the closing of his trust, or if he fails the given length •of time to file the inventory and valuation, the county judge may appoint an assignee. As the first of these provisions regards' a disability occurring after entering upon a discharge of the trust; so the second seems to regard a nonacceptance of the trust. It takes the failure to file an inventory, as a refusal to accept. We do not think that a just interpretation of the act, requires so rigid a view, as to regard an imperfect, or defective inventory, as an absolute nullity. There are reasons for considering a valuation made by other and disinterested persons, as superior to one made by the assignee1 himself, and it affords him no greater opportunity for withholding property, than if made by himself. He adopts the act of the appraisers, and thus makes it his own, and they are sworn to a true performance of the duty. It is to be remembered, that he may make subsequent reports, at any time, and that he is under the supervision of, and subject to, the orders of the district court, who may require him to report upon the condition of his trust, and may, at any time, rectify any errors — cause defects to be cured, and imperfections to be amended. Let it be further borne in mind, that the statute is not express in requiring his signature, or oath, to the inventory and valuation ; and that there are not wanting similar instances of a want of explicit requirement as to who shall make an affidavit, or the like, and in which it. is held that the act may be performed by others than the party concerned. It is true that the knowledge of the property assigned, belongs properly to him, but, on the other hand, the appraisement of it, better becomes disinterested persons. In view of these considerations, although we may believe it the primary intent of the statute, that the assignee should sign and make oath to the inventory, at least, yet believing [447] that a total failure to accept or fulfil the trust, was contemplated, before the will of the assignor should be suspended, by the appointment of a new trustee, we cannot believe this to be the case of such a failure as to call for the appointment of another assignee. In substance, and intention, he has complied with the law, and if the form, or detail, is not entirely correct, it is within the power of the court to cause it to be perfected, by the return of a new inventory, or an amendment of the present one. The district court considered the appointment by the county court as coming within the puposes and intent of the statute, inasmuch as the inventory and appraisement was not made by the assignee himself, thus regarding these as a nullity, and as if no inventory had been made. In this, we think, the court erred. This view of the case, avoids the necessity of considering the objection, that the appointment was made ex parte, and without notice to the assignee. The judgment of the district court is reversed, and a writ of jprocedendo is awarded, with directions to the court to award a return of the property, or, in failure thereof, thai. the defendant have judgment for the value thereof, according to the terms of the agreed case.