Hatcher v. Winters

• Decision Date: 31 October 1879
• Citation: 71 Mo. 30
• Parties: HATCHER et al., Plaintiffs in Error, v. WINTERS.
• Court: Missouri Supreme Court

71 Mo. 30

HATCHER et al., Plaintiffs in Error,

v.WINTERS.

Supreme Court of Missouri.

October Term, 1879.

Error to Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

AFFIRMED.

Collier & Mansur for plaintiffs in error.

Shanklin, Low & McDougal and Stephen Peery for defendants in error.

HENRY, J.

James Winters, being largely indebted and pecuniarily embarrassed, with a view to secure all his creditors, on or about the 9th day of January, 1871, executed a deed of assignment conveying to Ezekiel L. and Nathan A. Winters, all his property of every kind and description, including all goods, chattels, lands, tenements, bonds, notes and accounts of the firm of James Winters & Son, the said son being N. J. Winters, a minor under twenty-one years of age, who, the petition alleged, had no interest in said firm adverse to said James Winters. The deed excepted from this general assignment the interest of said James Winters in the firm of Winters & De Bolt, a firm composed of said James Winters and K. A. De Bolt; his interest in said firm by a stipulation in said deed was to be applied to the payment of the debts of said last mentioned firm. The said conveyance was for the benefit of all the creditors of said Winters, including plaintiffs in this case. In pursuance of its terms, said trustees entered upon the discharge of their duties under said deed, and proceeded to take charge and make an inventory of the property so conveyed, and to collect the debts so assigned to them, and apply the proceeds in payment of claims against said Winters. They never gave any bond, or appointed a day within six months after said assignment, or ever, when they would proceed publicly to adjust and allow all demands against said Winters, by advertising in a newspaper published in Grundy county, or otherwise, pursuant to the statute. Plaintiffs are creditors, but have never presented their demands, because no such notice was ever given.

Defendants, Nathan A. and James Winters, on or about the 10th day of February, 1871, entered into an agreemen in writing with Alburtus Scott, John Hatcher, Hugh C. Warren, Davis C. Vincil, Henry Clem, Wilson F. Moore, Emannel Clem, S. S. Merrill, and David Killburn, reciting the indebtedness of said James Winters to Nathan Winters, and the other parties to the agreement respectively, and the assignment by James Winters, and that the parties to the agreement were all desirous of continuing said James Winters in business, and of enabling him to settle up his affairs to the best advantage, and the said James Winters thereby agreed to pay promptly all the interest on the notes held by the other parties respectively at the end of the year, and also at the end of two years from the date thereof; that he would contract no new indebtedness or liability from and after the date thereof with any person, other than the parties to said agreement, for the space of two years thereafter, or sell any goods or property to any one on credit, who was not good and solvent over and above all exemptions allowed by law, and in consideration of such undertakings by him, the other parties agreed with him, and with each other, that they would forego all their rights and benefits on account of their said debts in said assignment, and forbear to present their claims to said assignees for allowance against the assets assigned, or, for the space of two years, or so long as said James Winters should keep and observe the stipulations on his part, to commence any action or other proceeding to collect or secure their respective claims, or to sell their respective claims to any one without first obtaining the assent of the purchaser to the terms of said agreement, and it was further agreed that if said Winters should violate any of the terms of said agreement, it should become void, and any party, after having notified said Winters and the other parties, should be at liberty to take such steps for the collection or security of his...