141 Mo. 69 | Mo. | 1897
— Jurisdiction of general assignments for the benefit of creditors is vested by the statutes of this State in the circuit courts, which are expressly charged with the supervision and control of assignees in the execution of their trusts. If the deed of Murdock as surviving partner of the firm of Murdock & Dickson to Priest effected an assignment of the partnership estate, the duty of the respondents as judges of the circuit court of St. Louis to assume and continue to exercise jurisdiction by all proper orders and judgments until the final settlement of the assignee is unquestionable.
The power of a surviving member of a partnership to assign the firm property for the benefit of its creditors in the absence of an inhibitory statute, has been generally upheld. Shanks v. Klein, 104 U. S. 18; Emerson v. Senter, 118 U. S. 3; Williams v. Whedon, 109 N. Y. 333; Riley v. Carter, 25 Atl. Rep. (Md.) 667; Atchison v. Jones, 1 S. W. Rep. (Ky.) 406; Patton v. Leftwich, 86 Va. 421; Hanson v. Metcalf, 46 Minn. 25; Hill v. Draper, 54 Ark. 395; Burnside v. Merrick, 4 Metc. 537; Moody v. Downs, 63 N. H. 50; White v. Union Ins. Co., 1 Nott. & McC. 556; 9 Am. Dec. 726; Gratz v. Bayard, 11 S. & R. 41.
Sometimes, but not usually, the ruléis qualified by requiring the consent of the administrator of the deceased partner to render the assignment valid. Nelson v. Tenney, 36 Hun. 327; Barcroft v. Snodgrass, 1 Cold. 431. In Salisbury v. Ellison, 7 Colo. 167, 2 Pac. Rep. 906, it was denied that the survivor can make an assignment with preferences unless the estate is solvent, on the ground that he is a trustee for all the creditors and can not sacrifice the interests of some by showing favoritism to others. The opinion declares that in the cases allowing assignments, with one exception, the
But the weight of authority favors the plenary right of the survivor in all respects. Subject to the fundamental requirement that the assets shall be primarily devoted to the discharge of partnership obligations, he is recognized as having the same authority in disposing of them by sale, mortgage, pledge or assignment, the same right to prefer or secure creditors in the various modes permitted by the law, that the partners enjoyed jointly while both were living. Bohler v. Tappan, 1 Fed. Rep. 469; Wilson v. Soper, 13 B. Mon, 411; Barry v. Briggs, 22 Mich. 201; Stearnes v. Houghton, 38 Vt. 583; Roys v. Vilas, 18 Wis. 169; Milner v. Cooper, 65 Iowa, 190; Herd v. Delp, 1 Heisk, 530; Fulton v. Thompson, 18 Tex. 278; Allen v. Hill, 16 Cal. 113; Hogg v. Ashe, 1 Hayw. (N. C.) 472; Knott v. Stephens, 3 Or. 269. The theory underlying the rule is that full power of disposition is a necessary incident to the survivor’s ownership of the property, the title of which in legal contemplation is in him for winding up purposes. Bates on Partnership, sec. 731. Courts have sometimes gone to the length of holding him the owner in so absolute a sense that when sued individually he may set off a debt due him as surviving partner (Smith v. Barrow, 2 T. R. 476; Adams v. Hackett, 7 Foster (27 N. H.), 289; Quillen v. Arnold, 12 Nev. 234; Nehrboss v. Bliss, 88 N. Y. 600), or if sued on a firm liability may set off an individual demand. Stafford v. Gold, 9 Pick. 533. This extreme view of his ownership and title does not obtain in this State. Weil v. Jones, 70 Mo. 560.
II. But it is contended that as Murdock had given bond as surviving partner, and had been acting under the orders of the probate court for two years or more before the deed to Priest was executed, the jurisdiction of that court over the partnership estate was in full
For kindred reasons the circuit court can not be prohibited from proceeding with the assignment on that ground. The remedy by prohibition lies when the matter or cause in which the court is acting does not fall within. the classes of which the law gives it jurisdiction, or when it acts in excess of its jurisdiction. Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 296; Washburn v. Phillips, 2 Metc. 296.
The deed to Priest, if void or voidable only because Murdock had previously given bond and undertaken a settlement of the partnership affairs in the probate court, would present a prima facie valid assignment for the benefit of creditors of which the circuit court would be bound to take cognizance and constitute Priest prima facie an assignee whom it would be bound to control until the circumstances which avoided the instrument were made to appear by some form of pleading and proof. A court is not charged with the duty of inquiring whether there are facts aliunde which make an assignment void before taking jurisdiction of it. Its
Objections to jurisdiction which depend on matters in pais can not be considered on an application for this writ. Joseph v. Henry, 1 L. M. 388; 19 L. T. Q. B. 369; Brown v. Cocking, 9 B. & S. 503. They must be raised in the lower court, saved by exception and carried up by appeal.. All this was clearly elucidated in State ex rel. v. Withrow, 108 Mo. 1.
III. But if the surviving partner is without power to make an assignment of partnership effects, the case is altogether different. ' The deed to Priest shows on its face that Murdock executed it as the surviving member of his firm. If the statutes denied him the right to so disposé of the firm’s estate, then the instrument was void from its inception, not on account of matters in pais peculiar to it, but because every attempt of the kind, whatever the surrounding circumstances, violates the policy of the law. Of course these remarks are to be understood as applying to the deed only in so far as it undertook to transfer partnership property. This brings us to consider the question whether the legislation in this State respecting the settlement of partnership estates at the death of a member abrogates the survivor’s common law right to assign the assets for the benefit of creditors. I can not escape the conviction that it does. The authorities on the subject are not altogether harmonious. In Indiana, under a statute
If a surviving partner may assign, then, whether partnership affairs shall be settled in the statutory forum, depends on the will.of the survivor instead
The same argument received convincing support
These views commend themselves as sound and tending to prevent confusion in the law governing the settlement of firm affairs. That partnership estates must be administered in the probate court when the relation has been dissolved by death, has been determined by explicit decisions in this State. James et al. v. Dixon, 21 Mo. 538; Ensworth v. Curd, 68 Mo. 282. So, if the clear letter of the statutes could be strengthened by construction, it has been done.
If the foregoing views are correct, then Murdock’s
Per Curiam. — The foregoing opinion of R. L. G-oode, Special Judge, is adopted as the opinion of t-he Court in lane,