107 Pa. 75 | Pa. | 1884
delivered the opinion of the Court, October 6th, 1884.
An assignee for the benefit of creditors, as such, has, generally, no right of appeal from a decree distributing the fund in his hands, among creditors; the decree is a complete protection in paying out the money; the law requires him to collect the trust property, put it into distributable form, and apply it as he may be directed, and his full duty is discharged in so doing. If the law were otherwise creditors might be subjected ■to great delay and useless expense to serve the interests of the assignees: Singmaster’s Appeal, 86 Penn. St. 169; Herbst’s Appeal, 90 Id. 353.
■ But the assignment of 7th of. September, 1876, to Francis Jordan and George W. Porter, although evidenced by a single instrument in effect created in the assignees two distinct and. several trusts. Samuel S. and'John A. Bigler, were bankers, doing business in the name of the City Bank, and it is not pretended, that Casper S. Bigler had any connection with or interest in the bank. Samuel S. and Casper Bigler were lumber manufacturers, and with that firm John A. Bigler had no connection whatever. The assets of these several firms were, therefore, properly the subject of distinct conveyances. If they had been so conveyed, we think, the assignees’ right of appeal would not be doubted, and we cannot see how that right can be defeated by the mere form of the conveyance. Distinct accounts, and distinct distributions are necessary to the convenient and proper adjustment of the rights and equi ties involved; the estate of John A. Bigler cannot be confused with that of Bigler & Son, nor can the affairs of Casper .S. Bigler .he .settled in an account of the City Bank. The
But assuming that the appeal is rightly taken, we cannot sustain the contention of the appellants in this case. The fund for distribution is the proceeds of real estate, the individual assets of Casper S. Bigler, sold by the assignees under the provisions of the Act of 17th February, 1876. Two claimants, only, appear before the Auditor. Lyman D. Gilbert claims the amount of judgment No. 87 November Term, 1876, John A. Hooker v. Casper S. Bigler, an individual indebtedness, tho lien of which expired September 7th, 1881. No scire facias had issued upon it, and, as the conversion of the land into money was not effected until 81st January, 1882, the date of the confirmation of the sale, the judgment was an individual debt without priority of lien: Carver’s Appeal, 8 Norris 276; Tomlinson’s Appeal, 9 Norris 224; Burkholder’s Appeal, 18 Norris 525. The full amount of this judgment, debt and interest is 89227.61. From the proceeds of other real estate of Casper S. Bigler, embraced in the assignment, §5779.64 had been previously awarded to this claim but it is conceded that in this distribution, it is entitled to participate upon its full amount, provided only that satisfaction of the proper balance be effected thereby: -Kim’s Appeal, 8 Casey 42. The City Bank by their assignees, Francis Jordan and Geo. W. Porter claim upon five several judgment notes, dated January 1,1876, under seal, payable to John A. Bigler, and signed Bigler & Son; having the words “ City Bank, Harrisburg, Pa.,” stamped in blue ink, diagonally across the bottom of the notes, immediately before the signature, and amounting in the aggregate, to §184,000. The claim of the City Bank rests exclusively upon the notes, no evidence whatever was offered on the part of the bank to show the consideration upon which they were given; they are payable to John A. Bigler, but whether the consideration passed from him or from the bank does not appear; indeed whether they were given upon any valid consideration rests in the presumption arising from the seal.
That Casper S. Bigler is a competent witness we think cannot be doubted. He is not in any sense a party to the proceeding; he made no claim before the Auditor; the question was one of distribution among his individual creditors only; his partner had no interest in the fund, was no party to the notes, and could neither be bound nor benefitted by them. If the notes were not entitled to share in the fund, because they were executed after the assignment, his individual liability continued. The issue involved is not as to his liability — that is conceded — but it is as to the right of one of his creditors to participate, to the exclusion of another; his interest is in equilibrio ; if the fund is applied to one creditor, his responsibility to the other remains.
The assignment for creditors was dated 7th September, 1876, and their rights are fixed as of that date ; each creditor, by the conveyance, becomes the owner, in equity, of such proportionate part of the property assigned as the debt due him bears to the aggregate of debts; it is as part-owners that creditors have standing in court when the distribution comes to be made: Miller’s Appeal, 11 Casey 48; Brough’s Estate, 21 P. F. S. 460 ; Dean’s Appeal, 2 Out. 101. The notes were dated January 1st; 1876, but Casper S. Bigler testifies, and the court finds, that thev were not given at the time of
In this finding, too, we think the court was clearly right. The testimony of Casper S. Bigler, on this point, is clear and uneontradicted, and as to the character of the debt is fully sustained by the form and expression of the obligations themselves. No attempt was made to contradict his statement that the notes were given after the assignment, or to prove their consideration. It seems incredible that a transaction, involving so large a sum, was not susceptible of some form of proof or explanation. The question sought to be raised by the alternate report already referred to, so ably discussed by counsel, is not raised upon this record, and cannot here be determined.
The appeal is dismissed at the costs of the appellants, and the decree confirming the second alternative distribution of the Auditors is affirmed, and it is ordered that the money be paid out accordingly.