230 F. 385 | 8th Cir. | 1916
This is an appeal from an order disallowing a claim against the estate of a bankrupt made by a trustee for creditors to recover Expenses incurred and services rendered by him before the bankruptcy, upon this state of facts: On November 12, 1914, Stalcup, an insolvent merchant, met his creditors and pursuant to an agreement among them made a trust deed of substantially all his property to H. W. Bramble, the claimant and appellant, in trust, to take possession of and sell his merchandise in the regular course of business-, to replenish the stock from the proceeds of the sales, to collect his book accounts, to pay from the proceeds of the sales dividends pro rata, to pay all his creditors and in case such creditors should not be paid in full by March '12, 1915, then to advertise and sell all the remaining property, to distribute the proceeds, after paying expenses of administration, among the creditors pro rata, and to turn over the surplus, if any, to Stalcup. On November 12, 1914, Bramble took possession of the property and of this trust deed, made an inventory thereof, and on November 21, 1914, while he was proceeding to sell some of the merchandise in the regular course of business, Stalcup forcibly evicted him from tire premises and took possession of the property. Thereupon Bramble immediately employed an attorney and obtained a restraining order from a court forbidding Stalcup to interfere with his management of tire property, when, on November 25, 1914, on the voluntary petition of Stalcup, he was adjudged a bankrupt and the property passed into the custody of the bankruptcy court. To that court Bramble presented a petition to be allowed and paid out of the proceeds of the estate of the bankrupt, before their distribution to creditors, $116.10 for his services as trustee before the bankruptcy, $100 for the services of his attorney, the expenses of taking the inventory and running the business, and $483.87 for merchandise which he had purchased from the Rat-cliff-Sanders Grocer Company to replenish the. stock. The referee and the District Court denied his petition and refused to allow him
But counsel say that the trust deed was void (b) because it was not recorded, and it is true that the laws of Oklahoma required it to be recorded (chapter 4, §§ 218, 223), but it seems that the penalty of invalidity for failure to make the record does not fall unless the record is not made and the inventory required in the statute is not filed within 20 days after the date of the assignment (section 225); (c) because no inventory was filed, but no penalty fell for the failure to file the inventory until 20 days after November 12,' 1914 (sections 221, 225), and all the expenses of Bramble were incurred and all his services were rendered within 15 days after that date; (d) because no bond was filed with the proper officer, hut no penalty fell for the failure to file a bond until 30 days from the date of the assignment (section 227), and all the dealings of Mr. Bramble with ike property were concluded before that dale. The result is that because, until after Bramble was evicted from the properly and until after the adjudication of bankruptcy was made, it was in the power of Bramble to comply with the laws of Oklahoma, because it was competent for the debtor Stalcup, the trustee Branjble and the creditors by consent or agreement to bind themselves to all the terms of the trust deed ami to a waiver of all the requirements of the statutes of Oklahoma regarding the execution, record, inventory and bond in the case of an assignment for the benefit of creditors, and no creditor had objected to or challenged the validity of this trust deed while Bramble was acting under it, and because during the time he was thus acting it was still possible to comply with all the
The decree below is accordingly reversed, and the case is remanded, with directions to render a decree granting the petition of H. W. Bramble and directing the trustee in bankruptcy to pay to him ,$955.85. and legal interest thereon from January 1, 1915, out of the proceeds of the estate of the bankrupt before distributing those proceeds in dividends to the creditors.