Hulse v. Marshall

9 Mo. App. 148 | Mo. Ct. App. | 1880

Hayden, J.,

delivered the opinion of the court.

It is plain that mandamus does not lie here, upon the basis of the plaintiff’s own argument. On that basis, the court has first to settle a doubtful question as to the construction of deeds,' and it is only after this doubt has been resolved in. favor of the appellant that a duty could be established or its performance directed. Thus, mandamus was not the appellant’s appropriate remedy. The State ex rel. v. Garesché, 3 Mo. App. 538.

The complaint is that the respondent, assignee, under the statute, of George H. Loker, refused to pay to the appellant five per cent alleged to be due upon the proved claim of the appellant, although there were assets. Whether the appellant was entitled to this dividend depends primarily on the construction of two deeds of assignment, by which George H. Loker and William N. Loker conveyed their partnership property, and also the individual property of George H. Loker, of whom this appellant was a creditor, to the assignee. By the demurrer to the return, the point sought to be raised was, whether, under the deeds, the partnership creditors shared equally with the individual creditors in the individual estate of George H. Loker, or, whether the individual creditors are to be paid first out of that estate. The deeds show upon their face that it was the intention of the assignors that all the creditors should be paid pro rata. No provision is made for individual creditors and nothing points to any distinction. It is thus clear that the assignee was right in refusing to make a difference not warranted bj' the terms of his trust. There had been no attempt to attack the assignment; and if no one complained, the assignee’s duty was to follow the provisions of the deed, as plainly expressed, not to attempt to alter them, thus substituting himself for the tribunal which might pronounce on the question when it was properly raised. Until so raised, assent of creditors must be assumed by the assignee, especially in a case like the present, where, if the deeds can be said to contravene the law at all, they certainly contravene it by no plainly repugnant provisions, which may at once be reje'eted as contradicting the statute. The cases which hold that where the provisions of an assignment are contrary to law the assignment may be good, if not directly attacked by creditors, apply with stronger force to the facts of the present case. See Henriques v. Hone, 2 Edw. Ch. 125 ; Jewett v. Woodward, 1 Edw. Ch. 195 ; Litchfield v. White, 3 Sandf. 553. Crow v. Beardsley, 68 Mo. 435, has no bearing here, since there the assignment, or rather deed of trust, was directly attacked, and the question raised by the plaintiff’s attachment. Thus, irrespective of the question whether the rule of equity that the individual property of a partner should first be applied to his individual debts has any application under our statute as against a general creditor, especially in view of such an assignment as the present, the appellant had no standing for the purpose of complaining of the conduct of the assignee, much less for the purpose of compelling him to the desired action.

The judgment on demurrer was properly made final against the appellant, and will be affirmed.

All the judges concur.