Adamson v. Cheney

Berry, J. One in whose favor a claim for indebtedness against an insolvent is filed and allowed, is, under our insolvent act, (Laws 1881, c. 148,) as respects such claim, the creditor, and the only creditor in the meaning and intent of that act. This seems to us to be clear from a general reading of the insolvent act, and of chapter 41, Gen. St. 1878, which is, so far as applicable, imported into it; and, what is particularly significant in this particular case, it is clearly infer-able from section 10 of chapter 148, which provides that “no creditor of any insolvent debtor shall receive any benefit under the provisions of this act * * * unless he shall have first filed with the clerk of the district court, in consideration of the benefits of the provisions of this act, a release to the debtor of all claims other than such as may be paid under the provisions of this act, for the benefit of such debtor.” Here “creditor” evidently refers to a person who was creditor at the time of the filing and allowance of the claim, and in whose behalf it was filed and allowed. The release must be executed by him. To hold that, after the filing and allowance of his claim, he may assign it so as to make his assign the “creditor,” and therefore the person who is to execute the release of all his claims other than such as are paid in the course of the proceedings in insolvency, would thwart the manifest spirit and policy of the insolvent act, which clearly is that the creditor in whose favor a claim is filed and allowed, is to receive payment thereof or thereon in consideration of the release of all other claims which he may hold against the insolvent. He is therefore the creditor who must make and file the release as a prerequisite to payment by the assignee; and, if the court orders notice of the time limited for filing releases to be given to the creditors of the insolvent estate, he is the creditor to whom notice should oe given as respects the claim which has been allowed in his favor. Judgment affirmed.