Maxwell v. McDaniels
| Decision Date | 14 March 1912 |
| Docket Number | 1,089,1,090. |
| Citation | 195 F. 426 |
| Parties | MAXWELL et al. v. McDANIELS (two cases). In re GILLASPIE. |
| Court | U.S. Court of Appeals — Fourth Circuit |
E. A Bowers, S. T. Spears, and D. H. Hill Arnold, for petitioners and appellants.
J. P Scott, A. M. Cunningham, and A. R. Stallings, for respondent and appellee.
Before PRITCHARD, Circuit Judge, and BOYD and ROSE, District Judges.
The same question is brought up both by the petition to review and by appeal. It is narrow. The petitioners and appellants are the trustee and certain creditors of C. D. Gillaspie, a bankrupt. For convenience they will be referred to briefly as the trustee. Gillaspie will be called the bankrupt.
The appellee and respondent is the administratrix of Isaac McDaniels. She claims that her husband was a secured creditor. She succeeds to his rights. She and he will each be described as the creditor; it not being important to distinguish between them. At and before the 12th of May 1906, the bankrupt and certain other persons were engaged in the erection and furnishing of a hotel at Elkins. At the date named $10,000 was borrowed from the creditor for this purpose. For this sum a promissory note, payable four months after date, was given by the bankrupt and indorsed by the other parties. Subsequently, on the 15th of August, 1907, the other parties by deed conveyed their undivided two-thirds in the hotel and its furnishings to the bankrupt and to Minnie Mae Gillaspie. A part of the consideration for this deed was the assumption by the grantees therein 'of all notes now outstanding executed by the' other parties and the said bankrupt 'for money borrowed by them used in the construction, purchase of material, the payment of labor and furniture and fixtures of the hotel. ' The grantees entered into possession of the property conveyed by the deed. On December 5, 1907, the creditor presented his bill of complaint against the bankrupt and others in which he said that the deed before mentioned had been made in fraud of creditors of the bankrupt and his associates in the hotel enterprise. On that and other grounds it prayed for the appointment of a receiver of the property of the bankrupt. See Maxwell v. McDaniels, 184 F. 311, 106 C.C.A 453.
Subsequently, and within four months after the filing of the bill of complaint, an involuntary petition was filed against the bankrupt upon which he was on the 3d of April, 1909, adjudicated. It was held by this court that the court below had in the equity proceeding no jurisdiction to appoint the receiver or to entertain the bill.
The first meeting of the creditors in bankruptcy appears to have been held February 7, 1910. At that time the creditor filed his proof of claim upon this $10,000 note. The proof was defective, in that it does not appear that the promissory note was filed with the claim. The affidavit was in the usual form for proof of an unsecured debt. It was not appropriate to a secured claim. It indeed contained the statement that the creditor had not, nor had any person for his order or to his knowledge and belief for his use, 'had or received any manner of security for said debt whatever. ' Nevertheless, it appears from the certificate of the referee that the creditor by his attorneys at the time of filing such proof verbally claimed the same to be a secured claim, that there was no objection to it as such, and it was at that time so allowed. More than a year afterwards the trustee in bankruptcy excepted to its allowance on the ground that it was not a claim against the bankrupt individually, but was a debt due by a copartnership; and, secondly, that it was not a secured claim. Thereupon the creditor prayed leave to amend the proof to show that the claim was secured by the vendor's lien before mentioned reserved in the deed to the bankrupt and another of an undivided two-thirds in the hotel property.
We do not understand that the first ground of objection made by the trustee is now relied on. Upon this record it could not be sustained. It is, however, earnestly contended that a creditor who proves a claim as unsecured may not after the lapse of a year from the adjudication amend the proof so as to assert that it is secured; that this creditor, at all events, cannot do so because the original form of proof was not the result of inadvertence or mistake, but was used because the...
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James Talcott, Inc. v. Roto Am. Corp.
...inequitable to declare the security forfeited. See Wuerpel v. Commercial Germania Trust & Savings Bank, 5 Cir., 238 F. 269; Maxwell v. McDaniels, 4 Cir., 195 F. 426; Hartford Accident & Indemnity Co. v. Coggin, 4 Cir., 78 F.2d 471; Standard Oil Co. v. Hawkins, 7 Cir., 74 F. The circumstance......
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In re Mannington Pottery Co.
...his position is largely a matter of judicial discretion." Collier on Bankruptcy, 14th Ed., Sec. 57.07. See also the case of Maxwell v. McDaniels, 4 Cir., 195 F. 426. It is strongly urged that the referee did not have the right to correct his former decree, and with that view I am unable to ......
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United States Nat Bank In Johnstown v. Chase Nat Bank of New York City
...inequitable to declare the security forfeited. See Wuerpel v. Commercial Germania Trust & Savings Bank, 5 Cir., 238 F. 269; Maxwell v. McDaniels, 4 Cir., 195 F. 426; Hartford Accident & Indemnity Co. v. Coggin, 4 Cir., 78 F.2d 471; Standard Oil Co. of Kentucky v. Hawkins, 7 Cir., 74 F. 395,......
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In re Prindible
...as being unsecured was allowed, after the expiration of the time for filing, to amend so as to prove the claim as secured. Maxwell v. McDaniels, 4 Cir., 195 F. 426. Furthermore, the record in the instant case indicates that the appellant's claim to security to the extent of $1,000 of his to......