42 P. 487 | Or. | 1895
Opinion by
It will be seen that this suit is in no way connected with, but is separate and distinct from, the assignment proceeding. It was instituted for the purpose of requiring a settlement and an accounting by the assignee touching the assigned estate, and of obtaining a decree directing the disposition of such portion or balance of the estate as may yet be found in his custody and under his control. The question to be determined here is whether a person, after having made a general assignment for the benefit of all his creditors under the general assignment laws of the state, and after having compounded and settled with his creditors, can maintain a suit in equity against his assignee to compel a final accounting, or must he proceed in the assignment matter still pending for the accomplishment of that purpose? Upon the one hand it is contended that this suit comes within the purview of well recognized equitable cognizance — that of compelling the execution and due performance of a trust; while upon the other it is claimed that the plaintiff should have sought his relief in the assignment matter, that the general assignment act and the acts amendatory thereof contain ample provisions for the administration and settlement
With these observations in view, we will now examine the statutory enactments governing general assignments for the benefit of creditors, and determine their effect. The act entitled “An act to secure creditors a just division of the estates of debtors who convey to assignees for the benefit of creditors,” was passed October eighteenth, eighteen hundred and seventy-eight, and amended February twenty-fourth, eighteen hun
The provisions of the assignment law are thus fully set forth that its full scope and bearing may be comprehended. It is plain that it provides a complete system for the supervision, administration, and settlement of the estates of insolvents who assign for the benefit of their creditors. Indeed, the act is closely allied to an insolvent or bankrupt law, if in reality it is not such a law. It provides that when the amount realized from all the assigned property is sufficient to pay at least fifty per cent, of the indebtedness under a fair assignment, the assignor shall, upon final settlement of the estate, be thenceforth discharged of all further liability on account of any indebtedness existing against him prior to the assignment. In this respect, at least, it may be said to be a qualified bankrupt law; but whether it may be classed as an insolvent or bankrupt law or not it is not necessary for us to determine at this time. The assignment is entirely voluntary. Through no act of insolvency on the debtor’s part can he be coerced into a distribution of his assets among his creditors; in this respect it bears no resemblance to an insolvent law. As before stated, the right to make a general assignment for the benefit of creditors existed at common law, but the debtor could assign with preferences. The statute circumscribes this right, and no general assignment is now valid unless made for the benefit of all creditors alike. The assignment must be in writing, duly acknowledged as conveyances of real estate, and recorded. Thus executed, and free from fraud, it divests the assignor of his estate, and thenceforth the law directs its administration. The conditions which the deed of assignment may prescribe becomes unimpor
It would seem from these provisions, and others that might be referred to, that the circuit court or the judge thereof possesses ample power to compel the due and faithful observance by the assignee of the duties of his trust, and a full and just settlement of the estate by him, and that the statute within itself prescribes a complete procedure for the administration and settlement of assigned estates. Considering this circumstance, and in view of the power given the court or the judge thereof to discharge the debtor from preexisting liabilities, we believe the necessary intendment of the legislature was to take away the ordinary equity jurisdiction touching the administration, settlement, and distribution of assigned estates, and that the procedure prescribed by statute is exclusive. This seems to us to be a proper conclusion upon reason and principle. But we are not without authority for so holding. The courts of New Jersey, Wisconsin, and Illinois, under assignment acts which contain no feature whatever allying them to an insolvent or bankrupt law, have held that the statutory procedure is exclusive. See Hoagland v. See, 40 N. J. Eq. 470 (3 Atl. 513); Lawson v. Stacy, 82 Wis. 303 (51 N. W. 961 and 52 N. W. 306); Freydendall v. Baldwin, 103 Ill. 329; Hanchett v. Waterbury, 115 Ill. 220 (32 N. E. 194); Preston v. Spaulding,