Citizens' Nat. Bank v. Minge

Mitchell, J. Laws 1881, ch. 148, § 2, as amended by Laws 1889, ch. 30, provides that, whenever any insolvent debtor is guilty of certain specified acts of omission or commission, “any one or more of his creditors having claims against him, to the aggregate amount of at least $200, may petition the district court or a judge thereof, * * * asking that a receiver be appointed,” etc. 1. To constitute a “claim” against the insolvent, within the meaning of this act, undoubtedly it must be a demand which is provable or allowable against his estate in. the insolvency proceedings. But all that is required to qualify the petitioners to institute these proceedings is that they have claims that are provable or allowable to the required amount. To be provable, they need not be due. Under all bankrupt or insolvent laws in this country or Eng [456] land, all debts'of the bankrupt, whether due or to become due, are held to be provable and entitled to share the distribution of his estate. Any other rule would be subversive of the prime object of a bankrupt law. Bump, Bankr. 28; In re Alexander, 4 Nat. Bankr. Reg. 178, 1 Low. 470. (Opinion published 52 N. W. Rep. 42.) 2. Under the late federal bankrupt act, it was provided that, where a debt was secured on the property of the bankrupt, it could only be proved for the balance over and above the value of the security, unless the creditor filed a release of his security. Our insolvent law contains no express provision of this kind, and whether any such is implied is a question not now before us. But, under all bankrupt laws of which we have any knowledge, it has been uniformly held that, where the debt is secured by the property or personal obligation of a third person, who stands in the relation of surety, it is provable for its full amount against the estate of the bankrupt principal debtor, and that, too, without the creditor being required to release his security. Any other rule would, for manifest reasons, be unjust alike to the creditor and to the surety. In re Alexander, supra. It follows that the claim of the petitioner in this case, although not yet due, and although secured by the obligation of a solvent surety, was provable against the estate of the insolvent, and therefore qualified the petitioner to commence these proceedings. Order reversed, and the matter remanded to the district court for further proceedings.