26 Or. 579 | Or. | 1895
Opinion by
1. The record discloses that J. R. Bryson was appointed receiver at about three o’clock in the afternoon of June tenth, eighteen hundred and ninety-three, and that P. Avery received his check, drawn that day upon Hamilton, Job & Company, before that hour, but that he accepted it with knowledge that their bank had suspended payment, and the question is presented as to whether Avery is entitled to offset the said check against his debt. The rule appears to be well settled that an equitable interest in an insolvent debtor’s estate is vested in a receiver by his appointment, and that he takes the assets of the debtor as a trust fund for the equal benefit of all the creditors of the estate. The receiver can acquire no greater
2. In Northampton Bank v. Balliet, 8 Watts & S. 311, 42 Am. Dec. 297, it was held that “the important period to determine the right of the assignee and the defendants is not the time of the assignment, but the time the defendants had notice of it, and this principle applies as well in the case of set-off as payment.” This would seem to imply that the debtor of an insolvent might, until he had received notice of the insolvency, acquire claims against the insolvent estate to offset his indebtedness, upon the theory that he was an innocent purchaser, for a valuable consideration, without notice. Applying this rule to the facts in the case at bar, Avery could not be an innocent purchaser, because when he acquired the check he had knowledge of the suspension, and hence is not entitled to the offset claimed, though in fact he had the check a few hours before the appointment of the receiver. The other claimants are even less favorably situated, as they not only obtained their checks with knowledge of the suspension of said bank, but presumably after the appointment of the receiver, and are therefore not entitled to offset them against their several debts.
3. The appointment of a receiver in a suit to dissolve a partnership, does not, of necessity, preclude its debtors
4. It is contended that the assignment made by Hamilton, Job & Company, discharged the equitable lien upon the assets of said firm created by the appointment of the receiver, and that the several appellants, having acquired their credits prior to the assignment, may offset them against their respective debts; and in support of this contention the appellants insist that the appointment of a receiver constituted an equitable attachment (Bump’s Bankruptcy [8th ed.j, 489, 490), and that, no judgment having been rendered therein, the lien created by the appointment of the receiver was discharged by the assignment of the debtors for the benefit of their creditors: Hill’s Code, § 3173. The manifest object of this section of the statute is to place the assets of the insolvent debtor in the hands of the assignee for the benefit of all the creditors in proportion to their respective claims, and to prevent any creditor from acquiring a lien upon the debtor’s property, or the fund arising from its sale. If the appointment of the receiver creating an equitable lien upon the assets of the firm had been for the benefit of a favored few, there would be just reason for holding that the assignment discharged such equitable lien; but when it is remembered that the receiver took an equitable interest in the assets as a trust fund for the benefit of all the creditors, and that the assignee now holds the legal title thereto for the same purpose and persons, we see no just reason for holding that the receiver’s lien was discharged by the appoint
Affirmed.