Clendening v. Perrine

• Decision Date: 29 June 1891
• Citation: 49 N.W. 334,32 Neb. 155
• Parties: CLENDENING ET AL. v. PERRINE.
• Court: Nebraska Supreme Court

32 Neb. 155

49 N.W. 334

CLENDENING ET AL.

v.PERRINE.

Supreme Court of Nebraska.

June 29, 1891.

Syllabus by the Court.

1. The instrument set out at length in the opinion construed to be a deed of assignment.

2. A creditor of an assignor, who through his own fault fails to present his claim against the estate within the time limited therefor by law, is barred from participation in any dividends or distribution of the estate of the assignor.

3. Claims against an assigned estate should be paid by the assignee only on direction of the court; but where claims have been paid without a dividend being declared, and the account of the assignee, which includes such payments, is approved by the court, the error is cured.

Appeal from district court, Cuming county; KINKAID, Judge.Uriah Bruner and T. M. Franse, for appellants.

M. McLaughlin and C. C. McNish, for appellee.

NORVAL, J.

On the 26th day of June, 1882, William T. Clendening, of Wisner, assigned all his property to the appellee, Henry Perrine, for the benefit of all his creditors. The assignee gave bond, took possession of the property, and converted the same into money. The assignee gave due and legal notice of his appointment as assignee on July 22, 1882, and the creditors of the assignor were notified to file their claims with the assignee within six months from said date. Numerous claims were filed with the assignee within the statutory time, some of which were paid in full, some 50 per cent. of their claims, and others 25 per cent., and many not anything. The assignee made a report of his doings to the district court, to which exceptions were filed by the appellants. On the 29th day of May, 1886, the district court of Cuming county, in accordance with the provisions of the statute in force at the time of the making of the assignment, appointed a referee to audit, adjust, and restate the account of the assignee, and make report thereof to the court. The referee reported that the assignee received from the sale of the property $3,061.04; that he had paid on claims against the estate $1,122.36, and the further sum of $437.15 as expenses incurred in conducting the assigned estate; and that the sum of $1,501.50 is in the assignee's hands, unaccounted for. The report also states that the sum of $492.01 remains unpaid on unallowed claims; that C. C. McNish and M. McLaughlin are entitled to $400 as compensation for legal services rendered the estate; and that a balance of $609.50 will remain in the hands of the assignee after discharging all liabilities of the assigned estate, except the compensation of the assignee. The referee reported that the claims of the appellants were not filed within the time required by law, hence cannot be allowed as valid claims against the assigned estate. Exceptions to the report of the referee were filed by the appellants, and upon the hearing the district court overruled the exceptions, and approved the report in all respects except that the assignee was charged with the sum of $133, being the value of certain assigned property appropriated by the assignor. The compensation of the assignee was fixed at $300, and the referee was allowed $100.

The two principal questions raised by this appeal are: First, whether the deed of the assignor conveying the property to the appellee is a deed of assignment; and, second, whether the claims of the appellants should have been allowed. The following is a copy of the deed: “This indenture, made this 26th day of June, 1882, between W. T. Clendening, party of the first part, and H. Perrine, party of the second part witnesseth that, for the purpose of securing all my creditors, I, the said party of the first, hereby voluntarily set over, assign, and transfer to H. Perrine, the said second party, the entire stock of goods consisting of a general stock of merchandise; also lot 12, block 35, with the appurtenances thereunto belonging, and a grain warehouse near railroad track, all of said property being situate in Wisner, Cuming county, Nebraska; and I hereby authorize said assignee to take such steps for the sale and disposition of said stock, consisting of dry goods, notions, boots, shoes, hats and caps, groceries, warehouse, etc., etc., as he may deem proper, together with all books of account, notes, and every other evidence of indebtedness therefor, from time to time, and make settlement in such way and manner as is provided by law, and to this end possession of said stock of goods and lot and store building, also warehouse, is hereby given my said assignee, and the books and notes transferred for the purpose of executing this trust and payment of all of my said creditors as fast as possible, regard being had at all times for the best interest of all parties concerned. In witness whereof I have hereunto set my hand this 26th day of June, 1882. [Signed] W. T. CLENDENING.” The deed was duly witnessed, acknowledged, and recorded. It is claimed by counsel for appellants,...