Third National Bank v. Haug

Cahill, J. March 1, 1889, George Morley, of Detroit, Mich., made a general assignment for the benefit of his creditors to Edmund Haug, of Detroit. The Third National Bank of Detroit, one of the creditors of said Morley, filed its claim on April 26, 1889, which was contested, but upon March 19, 1890, judgment was entered in favor of the bank, for the sum of $22,-178.64, which judgment is still in force. The bank claims to be a secured creditor, and to hold as security foj said debt mortgages upon the vessels R. O. Brittain, Colorado, and Reindeer, and upon certain land in the city of Detroit, as well as an assignment of a certain land contract, promissory notes, etc. Defendant denies the right of the petitioner to hold the said mortgages, land contract, notes, etc., as security for the payment of said debt, for reasons immaterial to the present issue, and the matter is now in litigation in the Wayne circuit court, two phases of said case having already been passed upon by this Court. Haug v. Third National Bank, 77 Mich. 474 (43 N. W. Rep. 939); Third National Bank v. Reilly, 81 Id. 438 (45 N. W. Rep. 830). Upon April 22, 1889, Archibald G. Lindsay, of the city of Detroit, was appointed receiver of the above-mentioned boats, with power to sell the same, and hold the proceeds to await the result of said litigation. The petitioner took part in the sale of the boats, and upon May 2, 1889, an — 609 — order was entered confirming the sale thereof for the sum of $8,610. This sale was consented to by all parties. Petitioner took an appeal to this Court from the order appointing a receiver, and upon November 8, 1889, the order was vacated. Immediately thereafter, petitioner made an application for an order directing the receiver to pay over the money in his hands, less his fees and expenses, to petitioner, and upon December 2, 1889, the receiver was ordered to do so. Thereupon he paid to the bank the sum of $6,989.13, which sum the bank now has in its possession. The other securities still remain available, and the proceeds therefrom, if the bank is successful in the pending litigation, will be applied, together with the proceeds from the sale of the boats, in reduction of the petitioner’s debt. On June 26, 1889, the defendant declared and paid to all creditors except the petitioner a dividend of 20 per cent., petitioner’s claim not having been adjudicated at that time. Immediately upon rendition of judgment for petitioner as above set forth, petitioner applied for the payment of a dividend of 20 per cent, upon the whole debt, disregarding the sum already in its possession, and the securities which it holds for the payment of said debt, or a portion thereof. Defendant declined to pay the same on the ground that petitioner was entitled to a dividend upon the residue only, after the securities had been worked out and the proceeds applied. In other words, that petitioner must first resort to its securities, and that it will be entitled to a dividend upon only so much as shall remain unpaid after the proceeds of said securities have been applied upon the debt. The court directed the assignee to pay a dividend upon the whole amount, regardless of the securities and the amount already realized from — 610 — the sale of the vessels, and from this order defendant appeals. The question here presented is an interesting one. If it were a new one in this State, much could be said, and many authorities cited, in support of either position, but we think the question is ruled by the case of Southern Mich. Nat’l Bank v. Byles, 67 Mich. 296. In that case, the bank was the holder of a note made by Kellogg, Sawyer & Co., as accomodation makers for the payees, Chickering & Kyser. The note was negotiated by the payees, and by them and Frank Chickering and Rice & Messmore indorsed; and the day before the note became due, Kellogg, Sawyer & Co. made an assignment. The note was duly protested, and the liability of all the indorsers established. Chickering & Kyser and Frank Chickering each soon after made an assignment. Under the circumstances of that case, then, the bank had, as against Kellogg, Sawyer & Co., the additional security of Chickering & Kyser, Frank Chickering, and Rice & Mess-more as indorsers, Chickering & Kyser being the parties for whose benefit the note was made, and who were therefore primarily liable to pay it. In course of time the bank received from the assignee of Chickering & Kyser a dividend of 40 per cent, on the note, which had been proved as a debt against all the insolvent estates. After-wards, it received a dividend of $88.60 from Frank Chickering’s estate. When the assignee of the estate of Kellogg, Sawyer & Co. declared a dividend, he declined to pay such dividend to the bank, except upon the balance that remained unpaid after indorsing the payments made by the assignees of Chickering & Kyser and Frank Chickering. A petition was filed by the bank in the circuit court for the county of Kalamazoo, in chancery, where the Kellogg, Sawyer & Co. estate was being settled, praying that the — 611 — assignee be required to pay a dividend upon the entire debt as originally proved against the Kellogg, Sawyer & Co. estate, and without reference to the amount received from the other estates. An order was made in accordance with that prayer, and the case was brought to this Court for review, where the order and decree of the circuit court was affirmed; Mr. Justice Sherwood, who wrote the opinion, using this language (p. 308): “ The general rule that, when one of two creditors of a common debtor has two funds out of which he may receive his pay, he is first to resort to the fund upon which the other creditor has no lien, and exhaust that before encroaching upon the other, does not apply to ■cases like the present.” The reasons advanced by the learned Judge in support of that opinion do not apply with the same force to this case, and yet the principle decided is a controlling one here. The doctrine invoked by the defendant is above all things an equitable one, and can therefore never be appealed to when it would work an injustice. 1 Story, Eq. Jur. § 560. Equity never interferes to deprive one of a substantial legal right, although it will sometimes require one so to exercise his right as not unnecessarily to injure another. Let us see how the claim of defendant, if applied to this case, would affect the legal rights of the petitioner. Before the assignment was made the bank had a legal right to proceed against the debtor personally, and to realize from him the whole of its debt, or as much as it could, without reference to its security. The debtor could not say: “I have given you security, and you must resort to that before troubling me with your claim.” An assignment does not affect the rights of the creditor. He may still look to the debtor’s general estate for the payment of his debt, and if his debt be thus paid, the — 612 — property on which he has security will fall back into the body of the debtor’s estate, which passed to the assignee, relieved of the creditor’s lien. If a part only of the debt be realized from the general estate of the debtor, the creditor may look to his security for the balance. The assignment affects the remedy merely. The creditor can no longer proceed according to the usual forms of law to subject his debtor’s property to the payment of his debts. Such property has by the assignment become a trust fund, and the creditor’s only remedy is to insist upon the due execution of the trust. But this remedy remains to him, and the fact that he has other security in no way impairs it. The legal right of the bank, then, is to have the trustee convert the trust fund into money, and pay to it its ratable share. If this be done, the dividend of 20 per cent, now due on the bank’s claim would, amount to $4,435.72, leaving a balance due it of $17,742.92, and, if the securities in its hands realized that sum, it would receive its pay in full. - If, however, we apply the doctrine contended for by defendant, and require the bank to credit upon its debt the value of its securities first, there would be a balance due it of $4,435.72, on which it would receive a dividend of 20 per cent., leaving a balance unpaid of $3,548.58. I know of no principle of equity bearing upon the marshaling of securities, the practical application of. which would result in so manifest a deprivation of a legal right. If the figures here used by way of illustration, merely, be incorrect as applied to this particular case, and if the value of the securities in the hands of the bank be equal to or greater than its debt, the defendant may pay the debt, and take the securities. If this involve any risk or burden, it will not be greater to the defendant than to the bank, and the former cannot require the latter to assume it in the interest of the unsecured creditors. In — 613 — no event can the bank receive more than its debt, except as a result of the profitable handling of the securities, and this opportunity the defendant can secure to himself for the benefit of the unsecured creditors if he chooses to assume the attendant risks. As supporting the views here expressed, see Evertson v. Booth, 19 Johns. 486; Brinkerhoff v. Marvin, 5 Johns. Ch. 320; Woolcocks v. Hart, 1 Paige, 185; Morrison v. Kurtz, 15 Ill. 193; Paddock v. Bates, 19 Ill. App. 470; Morris v. Olwine, 22 Penn. St. 441; Keim’s Appeal, 27 Id. 42; Miller’s Appeal, 35 Id. 481; Patten’s Appeal, 45 Id. 151; Graeff’s Appeal, 79 Id. 146; Kellock’s Case, L. R. 3 Ch. 769; Mason v. v. Bogg, 2 Mylne & C. 446; Findlay v. Hosmer, 2 Conn. 350; West v. Bank, 19 Vt. 403; Moses v. Ranlet, 2 N. H. 488; Walker v. Baxter, 26 Vt. 710. The rule contended for has been applied in the case of insolvent estates, and in the settlement of the estates of deceased persons. A different rule prevailed in bankruptcy, based, not upon equitable principles, but upon the express provisions of the statute. Since this opinion was first prepared, my attention has been called to the case of People v. Remington, decided by the court of appeals of New York in June last (24 N. E. Rep. 793), in which Mr. Justice Gray, in a full aud exhaustive opinion, which is concurred in by all the judges sitting, approves the doctrine here stated. The opinion of Justice Gray is published in 31 Cent. Law J. 330, supported by a learned note by Mr. S. S. Merrill containing full citation of authorities. But if anything was needed to enforce the rule here stated as applied to this case, the statute relating to voluntary assignments in this State seems to me to be decisive. How. Stat. chap. 303. Section 1 of this chapter provides that the assignment shall contain a list of the creditors of the insolvent. — 614 — Section 2 requires the list to contain the name and post-office address of each creditor, with a statement of the amount due, as near as may be, over and above all defenses, the actual consideration for the debt, and when contracted, and all securities, and the value thereof, held by each creditor. Section 4 requires every assignee, within ten days after-receiving such trust, to give notice to each creditor, and make and file proof of the service of such notice with the county clerk within ninety days thereafter. The notice shall require creditors to prove their claims within ninety days, or in default thereof the assignee will proceed to' distribute the estate without reference to claims not proven when dividends are paid. Before paying any dividend, the assignee is required to serve personally, or by mail, upon each creditor a complete list of all the creditors who have proved their claims, with a statement of the amount claimed. Section 7 requires every proof of a claim to be sworn to, and to state the actual amount unpaid, the consideration, when contracted, and when due; whether any and what securities are held therefor; whether any and what payments have been made thereon; and that the claimant has not, nor has any other person for him, received any security or satisfaction other than that by him set forth. Section 8 provides for contesting claims by the assignee on his own motion, or at the request of any creditor. The service of such a request operates to stay all payment of dividends on the claim until the further order of the court. Section 9 prescribes the proceedings for making the contest, and after issue is joined it is provided as follows: “The circuit court of said county shall proceed to the trial of said cause in the same manner as in other suits at law, allowing a jury, if demanded, * * * and the Court shall have the same power over the verdict of a jury and shall render judgment thereon as in other suits at law, except that no execution shall be awarded or issue in favor of the claimant.- * * * The amount of the claim as finally adjudicated, after allowing a proper sum for interest to or from the time of making a dividend upon the other claims, shall be the amount upon which a dividend shall be computed.” The petitioner’s claim has passed through the various stages of this statutory proceeding, including the contest, — 615 — and tlie amount upon which it asks to have a dividend computed and paid is “the amount of the claim as finally adjudicated” in such contest. I know of no power in the courts to gainsay this clear, statutory right. Farwell v. Myers, 66 Mich. 678 (33 N. W. Rep. 760). It will be noticed that although reference is made in two different sections of the statute to the fact that the creditor may have security, which he is required to disclose, yet he is nowhere required to surrender such security before receiving a dividend, nor to deduct the amount or value thereof, and accept a dividend on the balance of his debt. The absence of such a provision in the statute is significant, and clearly indicates that such a rule was not intended to be established. The order and decree of the court below is affirmed, with costs. Chahplin, C. J., Long and Grant, JJ., concurred with Cahill, J.