Adler v. LaNge

• Decision Date: 06 April 1886
• Citation: 21 Mo.App. 516
• Parties: S. ADLER ET AL., Appellants, v. C. LANGE, Respondent; STATE OF MISSOURI TO THE USE OF H. L. EDMUNDS, ASSIGNEE OF C. LANGE, Respondent, v. S. ADLER ET AL., Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 516

S. ADLER ET AL., Appellants,

v.C. LANGE, Respondent;

STATE OF MISSOURI TO THE USE OF H. L. EDMUNDS, ASSIGNEE OF C. LANGE, Respondent,

v.S. ADLER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

NATHAN FRANK and J. E. McKEIGHAN, for the appellants: The assignee permitted the assignor to sell without an order of court and without having filed an inventory. The provisions of the Revised Statutes, which require the assignee to file an inventory, and that the circuit court or judge thereof shall make an order for the sale of the property, are mandatory. Jaffrey v. McGehee, 107 U. S. 361: Rice v. Frayser, 24 Fed. Rep. 460. All the recent authorities hold that such a discretion in an assignee would invalidate the assignment. 52 Md. 211; 74 Ala. 598; 12 Wis. 391; 2 Black (U. S.) 532.R. H. KERN and H. D. LAUGHLIN, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

These two causes have been tried together by consent, under a stipulation that the evidence offered, as far as applicable, should be considered in each. Both actions grow out of attachment proceedings instituted by Adler et al. against Lange. The first is the attachment proceeding proper, and its trial upon a plea in abatement filed by the attachment debtor Lange, and the next is a suit upon the attachment bond instituted by Edmunds, the statutory assignee of Lange, against Adler and others, parties to the attachment bond. The causes were tried without the intervention of a jury, and the trial court rendered judgment on the plea in abatement for the defendant, and in the action upon the bond for the plaintiff.

I. The issues tried on the plea in abatement were: Whether the defendant had fraudulently conveyed or assigned his property and effects, so as to hinder and delay his creditors, or had fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors, or whether the debt sued for was fraudulently contracted.

The testimony bearing on these issues tended to show that the defendant Lange was, on the ninth of December, 1884, indebted to the plaintiffs, and that such debt was recently contracted. That his aggregate indebtedness to the plaintiffs and others, at that date, amounted to $26,000. That he was engaged in the retail shoe business, and that his property, being the stock of two shoe stores, was worth about $24,000. On the date above stated, Lange made an assignment of all his property, for the benefit of his creditors, to Edmunds. The memorandum accompanying the deed of assignment stated the value of the property at $8,000. The assignee caused the deed to be recorded the same day, and took possession of the property. He made and filed his bond the next succeeding day, and continued to sell the goods in the usual course of trade, until December 11, and up to the time when the property was attached, at the instance of Adler and others. These sales were made by the assignee without any previous order of the court, and prior to his making an inventory of the property. There was, also, evidence tending to show that Lange, the debtor, had stated upon a former examination that he made the assignment for the purpose of effecting a compromise with his creditors.

On the other hand, there was testimony tending to show that the assignee made these sales in good faith and for the best interest of the estate, and that they were subsequently approved by the court. Also, testimony tending to show that the assignee exercised exclusive control over the property from the date of the assignment, and that the debtor was not aware of the great discrepancy between the actual value of the property assigned, and its value as stated in the memorandum, as he kept no books.

This being substantially all the testimony bearing upon this issue, the defendant requested the court to instruct, as a matter of law, that the judgment must be for the defendant, on the plea in abatement. The court refused so to instruct, but found...