74 So. 770 | Miss. | 1917
delivered the opinion of the court.
Many of the contentions of appellee have been disposed of by the judgment heretofore rendered in this case overruling their' motion to dismiss this appeal. We necessarily held in the disposal of that motion that appellants had an appealable interest, and that the decree of the chancery court, from which this appeal was taken, is a final decree.
In the consideration of the merits, we will notice the main, if not the sole, question presented by the record —i. e., was the trial court right in holding that' the general assignment made by the Merchants’ &, Farmers’ Bank, of Vaiden, invalid?
It appears that the directors of the bank executed the assignment without first having obtained the consent of the stockholders of the bank, and for this reason appellees. insist that the assignment, was invalid. We note the rule announced in Corpus Juris, vol. 7, p. 738, viz.:
“It is generally held that an assignment for the benefit of creditors may be made by the directors of a bank independently of any action of the stockholders.”
The assignment in question is a general assignment of. all of the assets of the bank for the benefit of all the creditors of the bank. This is simply directing that the assets be devoted to the payment of all the debts of the bank, without discrimination. The assets of the bank are set apart by law for the payment of its debts, and the assignment merely assigns its assets to prevent active creditors from gaining, preferences over those less diligent.
It appears that no schedule of creditors was filed, and this omission appellees insist was fatal. We think not. No schedule or list of the property assigned was annexed to the assignment filed, and this appellees claim was a jurisdictional sine qua non. This contention might be sound if the assignment was partial, but when the assignment in the most comprehensive terms places all of its assets, of whatever kind or description, in the-hands of the assignee to be converted into money for the benefit of all the creditors of the insolvent corporation, it is thus made plain that nothing is reserved. Upon this particular point the authorities seem to be in conflict, but we believe the authorities holding that an omission to file a schedule does not render the assignment void are sound, and our own court seems to be in line with this view of the law. Kaufman v. Simon, 80 Miss. 189, 31 So. 713. Besides, the statute (section 128, Code 1906) fixes the exclusive penalty for failure to file with the assignment schedules of assets and creditors. “A general assignment which does not comply with this section shall be void as to all preferences contained in it.”
Referring to the objection that the seal of the corporation was not affixed to the assignment, the answer seems to be that the unsealed assignment passed “the equitable title, which equity will protect.” Hines v. Imperial Stores Co., 101 Miss. 802, 58 So. 650; Southern Plan. Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166. Besides, we gather that the seal was affixed to the assignment when revised.
J. C. Allen, the clerk who took the acknowledgment of the assignment, was a debtor of the bank, and for this reason it is contended that the acknowledgment was void, and the record, or filing of the instrument did not afford notice. Appellee seemed to have discovered that the assignment was made and have rather an intimate acquaintance with its contents, and even were this not so, we do not believe that the clerk, a debtor of the bank was incompetent to take the acknowledgment.
If the assignment had not been acknowledged at all, only innocent purchasers for value without notice would be affected bv this omission, and appellees do not fall within that class. See section 2787, Code 1906; Woods v. Garnett, 72 Miss. 78, 16 So. 390; Rosenthal v. Green, 37 Mo. App. 272.
Reverting to the provisions in the assignment providing for the allowance of attorney’s fees by the chancery court for the services of the attorneys in the preparation of the assignment and for services and advice rendered the assignee, we wish to say that, in our opinion, this is not a preference at all. All of this was essential to the preservation of the estate for the benefit of all creditors and for the proper administration of
The energy and diligence displayed by the attorneys for appellees in the prosecution' of their clients’ claims has made it necessary to consider this record with minute care, and while some of the numerous points made by counsel may not be specifically mentioned in this opinion, they may be assured that all have been considered and overruled. We see no reason why the assignment should be set aside, but every reason demands that the chancery court should proceed to administer this estate and distribute the net assets, ratably, among the credishould be set aside, but every reason demands that the chancery court should proceed to administer this estate and distribute the net assets, ratably, among the creditors of the defunct bank.
Reversed and remanded.
On Suggestion oe Error.
This is the third time that the issues involved in this appeal have been argued in this court. First, the point made now that the complainants in the cross-bill are not parties to this appeal was made and ably presented on the motion to dismiss the appeal. The motion to dismiss was overruled. The same point was urged on the merits, and pressed with renewed ardor, and was again overruled. On this suggestion of error counsel return to the charge with unabated dash and energy. We confess that we again take up this point without undue relish.
We think that this court has made it quite plain that the assignee receiver is a trustee to administer his trust for all parties concerned; that he does not cease to be assignee, although the assignment be declared void by the court. Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171; Metcalfe v. Bank et al., 89 Miss. 649, 41 So. 377. See, also, chapter 8, Code 1906. But it is claimed that cross-petitioners are not made parties to this appeal,
Let us look at this contention for a moment. It appears that the same attorney who filed the cross-petition in the chancery court is the attorney who appeared here and represented cross-petitioners at every step taken in this case. True, he appears, in form at least, for the assignee receiver, but his entire service has been given to cross-petitioners. We say this because the nominal appellee can have no peculiar reason for guarding the rights of the appellees, unless he believes that it is his duty to represent their interests, ana Ms attitude throughout the case has been in their interests, and properly so, we believe. The statute makes him their representative.
We might set aside all former orders and direct that formal notice be served on appellees to appear and contest this appeal. What would be the result should we adopt that course Why it is quite evident that the same counsel who has all the time represented them would or should refile his briefs wiffi an addenda to his representative title. They have been here, in fact if not in form, we are quite sure.
As before stated, the assignee receiver is the statutory representative of all persons interested in the administration of this estate, and it happens that his attitude has been hostile to appellants and unswervingly loyal to appellees. Appellees could not ask for another attorney; the receiver has already selected their nominee, and that he has been true to his trust we are ready to testify. We have a well-founded belief that cross-petitioners have been here all the time, not only in spirit, but also in material form. Cross-petitioners have chosen the receiver to represent them in this court, and he employed cross-petitioners’ attorney to make sure that their interests were taken care of. The receiver was the nominal party; cross-petitioners were the real parties.
