Caldwell v. Matthewson

¶1*2611. District court has power to remove derelict assignee.*260Before undertaking to pass upon the specifications of error in this case, it is necessary to consider the nature and extent of the jurisdiction of *261the District Court, where the assignment over the assignee and the assigned estate. The grounds on which the removal of the assignee was ordered are not such as are specifically mentioned in the statute relating to assignments. Section 30, of the Act to Regulate Voluntary Assignments for the Benefit of Creditors, authorizes the Court to dismiss the assignee for failure to file an inventory or to give bond, and section 31 provides for like proceedings in case any security on the bond of the assignee becomes insolvent or removes from the State. Section 35 authorizes the removal of the assignee for failure to pay dividends. Section 36 requires the assignee to exhibit, to any person entitled to a demand allowed against the estate, the condition of the assets; and section 37 reads as follows :

“Upon petition in behalf of any such person, to the district court in whose clerk’s office the inventory is filed, showing good cause therefor, verified by affidavit, such court shall cause any assignee to be cited to appear before it at such time as may be designated, to answer the allegations in such petition, and to do and abide such order as shall -be made by such court in the premises ; and upon the hearing, such court shall make such order as to it shall seem fit and lawful in the premises for enforcing the provisions of this chapter.”

¶2Section 12 of chapter 114, General Statutes of 1889, ¶”7170, Concerning Trusts and Powers, reads as follows :

“Trustees having violated or attempted to violate any express trust, or becoming insolvent, or of whose solvency or that of their sureties there is reasonable doubt, or for other cause, in the discretion of a court having jurisdiction, may, on petition of any person interested, after hearing, be removed by such *262court; and all vacancies in express trusteeships may be filled by such court.”

¶3That an assignee for the benefit of creditors is a trustee of the assigned estate is obvious. That courts of equity have general supervision and control over all matters of trust and confidence is settled law ; and it also seems to be settled that, unless in conflict with some express statutory provision, courts of equity have general supervision over and power to remove assignees for misconduct and violation of their duties. Burrill, Assignments, §419; McIlhenny Co. v. Todd, 71 Tex. 400; Cohen & Co. et al., v. Morris & Co. et al., 70 Ga. 313; Golden’s Appeal, 110 Pa. St. 581.

¶42. Assignee removed on petition. An assignee-for the benefit of creditors is the trustee of an express trust. “Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed, or will.” 2 Story’s Eq. Juris. [13 ed.] 283. Implied trusts are those which are deducible from the transactions of the parties where there is no express purpose to create a trust. 27 Am. & Eng. Encye. Law, 6. That the duties of the assignee in disposing of the trust estate are regulated by law, rather than by express terms of the deed of assignment, does not render the trust any the less an express one. It is as though the assignors had incorporated the act into the deed of assignment, for the estate is transferred as a trust for the benefit of creditors, to be administered and distributed among them as the law directs. While the statute regulates the management of the trust, it is created by the deed of assignment. Nor does the fact that the permanent assignee is selected by the creditors, who are the beneficiaries of the trust, render it any the less an express trust. It is in effect like any other substitution of a *263trustee. The nature of a trust does not depend in any degree on the particular individual who is to administer it.

¶5The acts Regulating Assignments for the Benefit of Creditors and Concerning Trusts and Powers were both parts of the General Statutes of 1868, and have remained in force ever since, except the provisions relating to the election of an assignee. We think the two acts may well be construed together, and that section 12 of the Act Concerning Trusts and Powers gives ample authority for the removal of an assignee for any violation of his trust. To hold that an assignee could only be removed for the causes expressly named in the Assignment Act, would require us to engraft on section 12 of the Act Relating to Trusts and Powers an exception which it seems to us clear, the Legislature never intended. Section 12 is broad and general in its provisions, reaching all cases of express trusts. Assignments for the benefit of creditors are but one of many kinds of express trusts.

¶63. Removed for cause. Much space in the brief and much time on the oral argument were devoted to the sufficiency of the proof to warrant a removal. It would serve no purpose to recite at length in this opinion the findings of the referee or the trial court. The substantial basis on which the order of removal rests is, that the assignee had been extravagant, and needlessly wasted the estate ; that he had paid out more money for expenses than was necessary, thereby depriving the creditors of dividends they ought to have received. This finding of the Court is abundantly sustained by the assignee’s report. The expenditure of more than $14,000 in the collection of less than $30,000 seems on its face altogether unreasonable, and this sum was likely to be *264increased by unpaid bills yet to be presented. There does not appear to have been any necessity for the employment of any such number of persons as the assignee kept on his pay-roll to assist him. While there would necessarily be somewhat heavy expenses connected with the management and disposition of so many pieces of encumbered real estate, there were many bills receivable, such as installment notes for loans negotiated, tax-sale certificates, and other items, which would not necessarily require any considerable labor or expense ; and, in fact, many of the in stall - ment notes were collected by the Matthewson-Snyder Investment Company and turned over at intervals to the assignee. It is not necessary to pursue the evidence in detail. We know of no better ground for removing an assignee, or one calling for more prompt and decided action, than that of needlessly wasting the estate. His motive in doing so is not of first importance. The principal thing sought to be accomplished by the assignment is the application of the estate to the payment of the assignor’s debts. If it is to be dissipated in expenses there is little use in having an assignee.

¶7Much is said in argument about the hostility between Matthewson and the assignee, and the cause of it. The fact of the existence of this feeling having been mentioned by the Court is taken as a basis for arguing that the only real ground existing for the removal of the assignee was this condition of hostility. It is further argued that this was caused entirely by the prosecution of a suit by the assignee against Matthewson’s wife to recover certain bills receivable, which she claimed the right to hold as security for money due her. It is urged that, in this matter, the assignee was serving the creditors faithfully; that *265Matthewson. was incensed because he brought the-suit, and that this furnished the only motive for the-attack on him. So far as appears from the record, the course of the assignee in this matter was entirely proper, but there seems to have been other matters-tending to create ill-will between the assignor and assignee. It is evident from the remarks of the Judge, incorporated in the record, that the removal was-based on the management and disposition of the-estate by the assignee.

¶8It is strenuously insisted that, even conceding that-the Court had power to remove the assignee, the proper practice was not pursued in this case, and that there are substantial errors in the proceedings requiring a reversal of the order of removal. It is insisted that-an action must be brought in the regular manner, by petition setting forth specifically the grounds for removal ; that security for costs should be given as at the commencement of a civil action; and that a summons should be issued and served in the usual way. There would be much force in this contention were it not for the fact that there is but one court having general jurisdiction over the assigned estate, and that is the District Court of the county in which the deed of assignment is recorded. Section 12 of the Act Concerning-Trusts and Powers does not require that the proceeding-to remove shall be by civil action, but provides that it shall be in the court having jurisdiction, after hearing, on petition of any person interested. The essentials of the procedure are, that a petition shall be presented to-the proper court by some person interested in the estate stating the ground for, and asking the removal of theassignee ; that he shall be given reasonable notice, and shall have a fair opportunity to defend against the-charges. The precise form of the petition is not of great-*266importance in matters of this kind. National Bank v. Branch, ante, page 27. In this case there certainly was no want of notice. There were multifarious petitions and amended petitions affording the defendant ample notice of what was alleged against him ; and the trial was finally had on a consolidation of all the charges incorporated into one petition. Nor do we think the jurisdiction depended on the filing of a cost bond. Whether the Court, in its discretion, might ha,ve required the petitioners to furnish security for costs, we are not called upon to decide. But the District Court of Labette County had jurisdiction of this estate long before any of these petitions for removal were filed. Of that jurisdiction none of the parties had power to deprive it. It alone had authority to pass on the conduct of the assignee and to order his removal for sufficient cause. Its "power to act did not depend on filing a cost bond, or a petition technically complying with the rules concerning pleadings in civil actions.

¶9The order of removal is affirmed.