In re T. S. Heath & Son

• Decision Date: 01 March 1909
• Citation: 136 Mo. App. 347,117 S.W. 125
• Parties: In re T. S. HEATH & SON. HEATH v. TUCKER.
• Court: Missouri Court of Appeals

117 S.W. 125

136 Mo. App. 347

In re T. S. HEATH & SON HEATH v. TUCKER.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

Rehearing Denied March 29, 1909.

1. VENUE (§ 36) — CHANGE OF VENUE — ASSIGNMENTS FOR BENEFIT OF CREDITORS — "CIVIL SUIT."

Under Rev. St. 1899, § 818 (Ann. St. 1906, p. 789), providing that a change of venue may be awarded in any civil suit to any court of record, the term "civil suit" refers to legal proceedings by which the rights and remedies of private individuals are enforced or protected, and authorizes a change of venue in proceedings under an assignment for benefit of creditors.

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 395) — ACCOUNTING — SCOPE OF INQUIRY ON HEARING.

On the hearing of exceptions to the final report of an assignee for the benefit of creditors, the validity of a transfer by the assignor to the assignee of the former's equity in the property cannot be attacked, as only such matters as pertain to the administration of the estate in the hands of an assignee can be investigated.

3. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 385) — ACCOUNTING — CREDITS — AMOUNT PAID ON CLAIMS.

Where an assignee for the benefit of creditors purchased claims against the assignor at a discount, he should only be allowed credit for the amount that he actually paid for the claims.

4. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 393) — ACCOUNTING — COMPENSATION.

Where an assignee for the benefit of creditors has purchased the assignor's equity in the estate, he should not be allowed compensation for administering the estate.

Appeal from Circuit Court, St. Clair County; C. A. Denton, Judge.

Exceptions by T. S. Heath to the final report of B. F. Tucker, assignee, in the matter of the assignment of T. S. Heath & Son, were sustained, and B. F. Tucker appeals. Reversed and remanded.

J. W. Montgomery and Rechow & Pufahl, for appellant. W. S. Jackson, W. A. Dollarhide, and Henry P. Lay, for respondent.

BROADDUS, P. J.

This appeal grows out of a judgment of the court sustaining certain exceptions to the final report of the appellant as assignee in an assignment proceeding under the statute. T. S. Heath, a merchant doing business at Weaubleau, Hickory county, in February, 1907, conveyed his property to B. F. Tucker as assignee for the benefit of creditors. The assignee in due time filed his final report as such assignee, to which Heath filed exceptions. Heath applied for a change of venue, which was sustained, and the venue of the cause was changed to St. Clair county.

The facts which gave rise to the controversy, stated in a general way, are as follows: The assignor, Heath, became worried about his business affairs, and, while suffering under much distress of mind, conceived the intention of making some disposition of his property, which he finally consummated by conveying it to the appellant, Tucker, for the benefit of his creditors. The property, consisting largely of merchandise, at the invoice price amounted to $14,000, and was appraised at the value of $9,629.96, a value largely in excess of the assignor's indebtedness. After making the assignment of his property, and while still laboring under a state of great mental perturbation, the assignor formed the resolution of selling his equity in the property so conveyed and proposed to sell it to Tucker, the assignee. Finally, they entered into an agreement, by the terms of which Tucker agreed to pay him...