Appeal of Jordan & Porter, 107 Pa. 75

Appeal of Jordan & Porter

107 Pa. 75 | Pa. | 1884

Mr. Justice Clakk.

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 *83assignees therefore, first settled an account of tbe assigned estate of Bigler & Son embracing none of tbe assets of tbe City Bank; this account, somewhat modified, was confirmed, and the balance in the hands of the assignees, under that account is the fund for distribution. Haying filed a satisfactory account as assignees of Bigler & Son, their only duty as to the creditors of that firm is to pay as they may be directed. But the City Bank, as the creditor of Bigler & Son, claim to participate in this distribution, and if the assignees of that bank have a proper claim, we cannot see why they may not share in the distribution as others, although the fund be in their own hands; if this be so, they are entitled to the remedies appropriate in such case.

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.

*84Casper S. Bigler was called as a witness, in the interest o£ Lyman D. Gilbert; his testimony is not printed, but from the opinion of the court below, we learn that he testified, among other things, that he signed the firm name to these notes, without the authority or consent of his partner. It is contended, however, in behalf of the City Bank, that if the signing' of the firm name of Bigler & Son, by Casper S. Bigler was not binding upon his partner, it was binding upon him, and that the debt thereby became his individual debt entitled to participate in the distribution as such. The Auditors have found that the notes were not given for an original individual indebtedness of Casper S. Bigler. An interesting question might here arise whether or not the notes being given in this form for a partnership debt of Bigler & Son, under circumstances that they do not bind his co-partner, they could be allowed, under the rules of equity'in a distribution of Casper S. Bigler's estate to the prejudice of his individual creditors, were it not for the fact that Casper S. Bigler further testified: “ These notes ..... signed by Bigler & Son were signed in. blank, after the date of the assignment for benefit of creditors. I signed them after the date of the assignment of the City Bank, it may be one or two days after, they were blank notes with no writing on when I signed them, the signature to the blank notes is mine.”

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 *85their date, that they were given some days after the assignment, and were ante-dated; whether this was done by mere mistake, or with a fraudulent design, it was competent by parol proof to establish the fact: Finney’s Appeal, 9 P. F. S. 898. After the assignment of their estate the assignors had no power over it, excepting as to the surplus, if any. Notes thus executed, therefore, afford no evidence of ownership in the property assigned, and, without proof of a previously existing consideration or claim, cannot participate in the distribution. This point, it is true, was overlooked by the Auditors, and is first raised in the opinion of the court below, but this is certainly no reason why we may disregard it. It was the duty of the court below to determine the cause according to the law and the evidence, and if the facts were not' fully found by the Auditors, it was the duty of the court either to recommit or to revise and correct the report.

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.