46 Minn. 87 | Minn. | 1891
The plaintiff brought an action in the month of October, 1884, against the firm of Walker, Judd & Veazie, to recover upon certain promissory notes, and thereafter, January 8, 1886, obtained a judgment which was that day docketed in the county wherein was situated the real property hereinafter mentioned. Meantime (December 25, 1884) the firm made what purported and was in
All of the proceedings subsequent to the execution of the deed of assignment were under the direction of the district court, and among other orders procured by the assignee was one. authorizing him to sell the property in question with.other property, and convert the same into money, that the proceeds thereof might, be distributed among the insolvents’ creditors. Notice of an application to the court for such order had previously been given, in the manner required by the court, to all parties interested, including plaintiff, by publication of the notice in certain newspapers, and by mail; a copy of the notice being duly mailed to plaintiff at his known place of resdence. It was found by the court, however, that, although his place of residence was in the county in which all of these proceedings were had, plaintiff did not receive the notice so mailed, or any notice of the application to sell. The property mentioned in the order was sold by the assignee, being the then unconverted assets of the insolvents, to certain individual creditors of Walker, Judd & Yeazie, upon terms set forth'in an agreement, known in this action as “Exhibit B, ” the price therefor being the sum of $100,000, less the amount of money — about $30,000 — which had already been-realized out of the assets and by- the assignee. This sale was duly confirmed by the court, and on May 10, 1885, Jenks, as assignee, executed and delivered a deed thereof, in which, at the request of the purchasers, a corporation known as the “Marine Lumber Company” was named as grantee. This deed was duly recorded September 22, 1885. The purchasing creditors were allowed to retain out of the purchase price of said property, as a dividend of 40 per cent, upon their claims, about $35,000. There was paid to the assignee in cash between $20,000 and $30,000, but of the stipulated price the sum of $8,347.73 has not been paid. On May 22, 1888; the Marine Lumber Company conveyed the property to William Dawson and others, without any actual consideration being paid, and on the next day, in consideration of the sum of $20,000 paid to them by defendant O’Brien, the
In May v. Walker, supra, it was said that, as respects a creditor who would have nothing to do with this assignment, it was void, and he might disregard it; that it did not have the effect to place the property purporting to have been assigned, or its proceeds, in the custody of the law, so far as such a creditor was concerned. This proposition was repeated in Re Walker, 37 Minn. 243, (33 N. W. Rep. 852,) (the proceeding wherein a receiver was appointed for the insolvent firm,) but in neither of these cases was it intimated that the assignment was invalid for all purposes as to assenting creditors. It was expressly stated in the opinion in the proceeding last referred, to that what property the receiver," when appointed, could claim' as assets of the insolvents, or how those assets should be distributed, were matters for future consideration. In that same opinion the correctness of the rule that if creditors come in under an invalid or fraudulent assignment, and accept benefits under it, they will be es-topped from afterwards attacking it as invalid, although declared inapplicable, was acknowledged. As did the respondents in that proceeding, these respondents invoke that familiar proposition as a primary reason for affirming the judgment in this case, which was in defendants’ favor. Because of matters which were apparent upon the face of the instrument, the deed of assignment made by Walker, Judd & Veazie was declared void as to a creditor who repudiated and would have nothing to do with it. Creditors could treat it as a nullity, but they were not obliged to do so, and no one else could so treat it. By taking a benefit under it, they elect not to so treat it, upon the common principle that one may dispense with a provision for his own protection, if he so chooses. By coming in, creditors could express an election to accept its provisions and to acquiesce in its terms.
Judgment affirmed.
Vanderburgh, J., did not sit. Mitchell, J., being absent, took no part in the decision.