Cass Cnty. v. Jack

• Decision Date: 31 January 1872
• Citation: 49 Mo. 196
• Parties: CASS COUNTY, Defendant in Error, v. WILLIAM A. JACK, Plaintiff in Error.
• Court: Missouri Supreme Court

49 Mo. 196

CASS COUNTY, Defendant in Error,

v.WILLIAM A. JACK, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to First District Court.

Comings, and Ewing & Smith, for plaintiff in error.

I. The Circuit Court had no power to pay or order to be paid the claim of Cass county. The debts must be paid according to the deed of assignment. A debtor, under the law of 1855, had a right to prefer one creditor to another, and the debts therefore must be paid as required and directed by the debtor in his deed of assignment. (Woods v. Tinnerman's Assignee, 27 Mo. 107; 5 Johns. 335; Wilkes v. Ferris, 5 Tenn. 420; Shapleigh & Rue v. Baird, 26 Mo. 322.)

II. Section 7, p. 1440, R. C. 1855, cannot affect this case; nor is 31 Mo. 205, nor 2 How. U. S. 608, applicable. The Legislature has no power by law to give a preference to one creditor over another without the debtor's consent.

III. The assignment is special, not general, and therefore the case does not come within the scope of the provision of section 7, art. VII, ch. 148, R. C. 1855. (See Wilkes v. Ferris, 5 Johns. 335; 5 Term Rep. 204.)

IV. The assignees have no authority to give a preference to one creditor over another. Their powers are limited by the provisions of the deed, and must be exercised by them accordingly, except so far as they may be restrained or modified by a court of competent jurisdiction.

Even admitting that the plaintiff has a priority over the other creditors, the fact is one that cannot be determined by the assignees; and the Circuit Court had no greater jurisdiction than they had, and could not, owing to this fact, grant the relief claimed, had it been manifest that plaintiff had the asserted priority. The statute regulating assignments (R. C. 1855, ch. 8) prescribes the manner in which assignees shall execute their trusts, and it nowhere confers the power claimed for them in this proceeding. If the priority really existed, as asserted by the plaintiff, it could be maintained by a direct proceeding in the Circuit Court against the assignees and the creditors mentioned in the deed.

R. O. Boggess, for defendant in error.

The effect of the statute (R. C. 1855, p. 1440, § 7) on the deed of assignment was the same as if its provisions had been expressly incorporated therein, and the assignees were as much bound to allow and pay the claim of Cass county according to its priority, as if they had so expressly been directed by the terms of the deed of assignment. (2 How. 608; 31 Mo. 205; Townsend v. Townsend, Peck's R. 1.)ADAMS, Judge, delivered the opinion of the court.

Abram Cassell, as treasurer of Cass county, became defaulter for school funds to the amount of $3,911.90, and in 1860 made a general assignment of all his personal property for the benefit of certain named creditors, who by virtue of the assignment were to be first paid, and then all of his other creditors if there was enough property left. He was insolvent, his property not being sufficient to pay the debts. The county debt was not named or provided for in the assignment, unless it came under the general clause of “all other creditors.”

Section 7, article VII, of the school law of 1855 (R. C. 1855, p. 1440) provides that “in case any officer or other person indebted or accountable for any money or property due or belonging to the State or any township or district, on account of any school fund or income thereof, shall die, become insolvent or bankrupt, or shall make a general assignment of his property and effects, the debt or amount so due and to be accounted for shall have priority over other debts, and shall be first paid.”

By virtue of this section of the school law, the debt of the county of Cass against Abram Cassell stood as a preferred debt, independent of the assignment, and overruled...