58 Kan. 657 | Kan. | 1897
This action was brought, in the Court of Common Pleas of Wyandotte County, by Howai’d M. Holden against A. E. Watson and numerous other attaching creditors of the Kansas City Safe Deposit and Savings Bank, the Realty Investment Company, the Corbin Investment Company and J. D. Strahan, to obtain a decree for the conveyance to him, by the three last-named defendants, of the title to certain lots in Brighton Hill addition to Kansas City, and to clear it from the attachment liens of the other defendants. Holden claims to hold the full equitable title to the property as assignee of the Kansas City Safe Deposit and Savings Bank, under a deed of assignment executed by the Savings Bank, July 10,1893, to Walter J. Bales and W. D. McLeod, and an appointment, by Hon. J. M. Slover, Judge of the Circuit Court of Jackson County, Missouri, of himself as successor of Bales and McLeod, who resigned.
The Kansas City Safe Deposit and Savings Bank was a corporation organized under the laws of Missouri, as a savings bank, and transacted its business at Kansas City, Mo. It had taken a mortgage on the property in controversy, from the Brighton Hill
The petition in this case was filed on May 8, 1894. Service was made on the defendants the Realty Investment Company, the Corbin Investment Company and J. D. Strahan, by publication. On October 20,
The case on its merits has been very clearly and ably presented by counsel on both sides. Though the record is long and the field of investigation suggested an interesting one, the questions necessary to Ije answered are neither numerous nor of great difficulty.
Though the title to the property was vested in the auxiliary corporations and Strahan, the agent of the Bank, before final judgment was entered against them, and the Bank retained in its possession only the mortgage executed to it and the stock of the companies as evidence of its property rights, Holden’s claim, as advanced in the petition and maintained throughout the trial, was, that the Bank was at all times prior to the assignment the full equitable owner of all the property. The defendants sought to subject the property to the payment of their claims against the Bank, claiming that the Bank owned the property. For the purpose of this case, under the claims of both parties, the Bank must be treated as holding the full equitable title to the property at all times since the title to it was taken by the auxiliary corporations and Strahan under the foreclosure proceedings. This suit was instituted by Holden, and can only be maintained
The statute of Kansas regulating assignments for the benefit of creditors differs from that of Missouri in one important particular. It requires a schedule of liabilities of the assignor to be filed in the office of the clerk of the district court of the county in which the assignment is recorded, and provides for an election of a permanent assignee by the creditors. If the creditors fail to choose, or if the person chosen x’efuses to accept, then the judge of the district court, or, in case of his absence, the probate judge of the county, may appoint an assignee. In case the person chosen or appointed be some one other than the original assignee, he is required to turn over all property to the new assignee. Under this statute, it has become the settled law of this State that the assignee stands as the representative of the creditors, as well as of the assignor, and may, for the pxxrpose of protecting the estate and the rights of the creditors, allege the fraud of the assignor in dealing with his property. Chapin v. Jenkins, 50 Kan. 385 ; Walton v. Eby, 53 id. 257; Withrow v. Citizens Bank, 55 id. 378 ; Marshall v. Van DeMark, 57 id. 304.
It is coxxtexided on behalf of the plaintiffs in error that this property was fraudulently placed by the Bank in the naxne of these axxxiliary companies axxd Strahan ; that under the laws of Missouri, where the deed of assignmexit was executed and where the assignor was domiciled, Holden could not attack the transaction and recover the property, because he would not be permitted to allege the fraud of the assignor; and that he can have no greater rights ixi Kansas than he would have had in Missouri.
We do not deem it necessary to base our decision on
Notwithstanding the fact that the plaintiff brought his suit to recover the title to the real estate and clear it of incumbrances, counsel seek to avoid this well-
It is clear that the appointment of Holden by Judge Slover neither passed any title to the lands in controversy to him, nor vested in him the trust created by the deed of assignment so far as the same relates to realty in Kansas. Whatever may be said in support of the proposition that equity never allows a trust to fall for want of a trustee, as to the property in controversy Holden is a mere volunteer without any rights that he can assert here. His action, under the statement in his petition, must fail. The court erred in rendering the judgment in his favor ; and it must be reversed, and the cause remanded with directions to enter j udgment on the pleadings in favor of the attaching creditors for costs.