McPike v. Atwell

• Decision Date: 09 October 1885
• Citation: 8 P. 118,34 Kan. 142
• Court: Kansas Supreme Court
• Parties: WILLIAM C. MCPIKE AND J. C. FOX, Partners as McPike & Fox, v. E. D. ATWELL

8 P. 118

34 Kan. 142

WILLIAM C. MCPIKE AND J. C. FOX, Partners as McPike & Fox, v. E. D. ATWELL

Supreme Court of Kansas

October 9, 1885

[Copyrighted Material Omitted]

Error from Osage District Court.

THIS action was brought in the district court of Osage county, on August 1, 1884, by William C. McPike and J. C. Fox, partners as McPike & Fox, against E. D. Atwell, to recover the sum of $ 428.88 for goods sold and delivered. On the same day an affidavit and bond for attachment against the property of the defendant was filed by the plaintiffs. Among the grounds for attachment alleged in the affidavit was "that the defendant had assigned, removed and disposed of his property or a part thereof, with intent to defraud, hinder and delay his creditors." The writ of attachment was accordingly issued and levied on a stock of drugs, oils and medicines of the defendant in the city of Lyndon. On August 4, 1884, a motion was made by the defendant to dissolve the attachment upon the following grounds: "First, that the grounds for said attachment laid in the affidavit for attachment are, and were at the date of the issuance of said writ, untrue. Second, that the grounds on which said attachment and writ were issued are insufficient in law. Third, that the attachment proceedings were defective and illegal." To support his motion the defendant filed his affidavit denying generally the grounds for attachment alleged in the plaintiffs' affidavit. The plaintiffs, to maintain the issue on their part, introduced a deed of assignment for the benefit of creditors made by the defendant on June 19, 1884 a copy of which is as follows:

"STATE OF KANSAS, COUNTY OF OSAGE, SS.: This indenture, made this 19th day of June, 1884, between E. D. Atwell, of Lyndon county of Osage, state of Kansas, party of the first part, and H. D. Danhauer of said town, county and state, party of the second part, witnesseth:

"Whereas, the said E. D. Atwell is largely and justly indebted in sundry considerable sums of money to various persons, and whereas, the said E. D. Atwell has been unable, and is now unable, to discharge said debts, or make any satisfactory settlement of the same with punctuality or in full, or a part thereof as a full settlement thereof, and being desirous of securing to all his creditors the possession of whatever property and effects he is seized of, and to prevent an undue sacrifice of the same:

"Now, therefore, this indenture witnesseth, that the said E. D. Atwell, party of the first part, in consideration of the premises hereinafter recited, and of one dollar to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, has granted, bargained and sold, assigned, released and transferred and set over unto the said party of the second part, and by these presents does grant, bargain, sell, transfer and set over unto the said party of the second part, in trust and for the benefit of all his creditors, and in proportion to their respective claims, all and singular, the following personal property, to wit:

"My entire stock of drugs, consisting of drugs, notions, paints, oils, scales, prescription case, bottles and all shelf furniture, safe, and all patent medicines not sold on commission, stationery, blank books, store book, accounts, claims, due-bills, demands, choses in action, notes, judgments and all other evidences of debt whatsoever, belonging to said party of the first part; all being situated and contained in a two-story frame building situated on lot No. 6, in block No. 21, in the city of Lyndon, county of Osage and state of Kansas, to have and to hold the same unto the party of the second part in trust, and for the benefit of the creditors of said party of the first part, and for the following uses, intents and purposes, to wit:

"The said party of the second part shall at once, or as soon as practicable, take possession of all and singular the personal property, effects, rights in action hereby assigned, and sell and dispose of the same, either at public or private sale, as he in his good judgment may deem advisable and for the best interest of all the creditors of said party of the first part--converting the same into money; and also to collect all and singular the debts, due-bills, notes, demands, choses in action, judgments and demands, or so much thereof as may prove collectible, and thereupon execute and deliver all necessary acquittances and discharges, and by and with the proceeds arising from such sale and collections--

"1st. The said party of the second part shall first pay and discharge all reasonable and just expenses, and charges, and disbursements of carrying into effect this assignment, and all other charges that may become necessary for the purpose aforesaid.

"2d. The said party of the second part shall proceed to pay out of the residue remaining after paying the expenses and charges after carrying this assignment into effect, the debts of said party of the first part pro rata and in proportion to their respective claims, whether due or to become due, first paying all secured creditors in full, as is shown and set out in Schedule A hereto attached, and all unsecured and unpreferred creditors pro rata in proportion to their respective claims--the said party of the first part reserving the right to correct in detail the said Schedule A, should the same on close examination of proofs and books be found to be incorrectly stated in amount or otherwise.

"3d. The rest and residue remaining, if any there shall be after the expenses of sale and collection are fully paid, and all debts and liabilities have been paid and settled as aforesaid, the balance shall be paid to said E. D. Atwell, party of the first part; and for the better execution of this instrument, and the trusts and duties hereby conferred, the said party of the first part does hereby nominate and appoint the said party of the second part his true and lawful attorney, irrevocably, with full power and authority to do and perform all acts, matters and things which can or may be necessary in the premises, as fully and completely as the said party of the first part might or could have or do were these presents not executed, and attorney one or more under him to make, nominate, and appoint, as he may deem necessary, with full power of substitution and revocation, hereby satisfying and approving all and everything which my said attorney shall do or cause to be done in the premises.

"In witness whereof, the said E. D. Atwell, party of the first part, has hereunto set his hand and seal, this 19th day of June, 1884. E. D. ATWELL.

"STATE OF KANSAS, COUNTY OF OSAGE, SS.: Personally appeared before me, clerk of the district court of county and state aforesaid, E. D. Atwell, who acknowledged the execution of the annexed deed of assignment for the purpose herein specified, to be his own voluntary act and deed, this 19th day of June, 1884.

[Seal.] W. A. COTTERMAN,

Clerk of District Court.

"I hereby accept the trust conferred on me by virtue of the foregoing deed of assignment, and assume the discharge of the duties growing out of the same, this 19th day of June, 1884.

D. H. DANHAUER.

"I do solemnly swear that I will honestly and faithfully perform the duties enjoined upon me in the above and foregoing deed of assignment as assignee of E. D. Atwell, to the best of my ability. So help me God.

D. H. DANHAUER.

"Subscribed and sworn to before me, this 19th day of June, 1884.

[Seal.] W. A. COTTERMAN,

Clerk of District Court."

The plaintiffs also offered in evidence the original inventory of all the property, effects and things assigned by the defendant to D. H. Danhauer, which was filed in the office of the clerk of the district court by said defendant at the time the assignment was made; also the schedule of liabilities of the defendant filed in the...