INSOLVENT DEBTORS.

[Lucas Circuit Court,

February 11, 1899.]

King, Haynes and Parker, JJ.

#### The Abner L. Backus & Sons Co. v. Alexander Backus.

1. Failure of Creditors to Present their Claims to The Assignee within ' The Time Limited by Statute.

A failure of the creditors to present-their claims to the assignee within six months after publication of notice of appointment of such assignee, is a bar to such claims unless there are funds available in the hands of the assignee^

2. Discharge of Assignee — Retention of Funds After Discharge.

Where an assignee has been discharged, he cannot retain funds of the assignor in his hands, on the ground that they will be necessary to pay claims which may be presented by creditors who have failed to present their claims within six months after publication of notice as required by statute.

3. Evidence as to Ownership of Certain BoSids Delivered by Assignor to the Assignee.

The mere fact that certain bonds were delivered to the assignee for the purpose of paying a debt of the assignor, is not evidence sufficient to show that the assignor was the owner of such bonds.

Haynes, J.

In this action a petition in error is filed for the purpose of reversing the judgment of the court of common pleas in a case wherein the plaintiff in error was the plaintiff below and the defendant in error was defendant below, and which case was tried to the court and a judgment was rendered upon the finding of the court and the evidence.

The action below was brought upon two causes of action. The first cause of action alleged generally that the Abner L. Backus & Sons Company had, in 1893, on June 13, made a general assignment for the benefit of its creditors, to the defendant, Alexander Backus; and it relates that some two months after the assignment had been made, an application had been filed in the probate court of Lucas county, for the discharge of the assignee upon an extended statement that the assignor had settled with all the creditors of the company, with the exception of four — which are-specified — and that the costs of administration had been paid, and that, thereupon an order was made in which it was ordered by the court that the assignment should be discharged and the property in his hands should *790be returned t.o the assignor. It was provided also in that order, it was said, that the assignee should give a bond, with certain conditions; and it alleged, that these other creditors which have been mentioned had never filed any claims, nor had any creditors filed any claims with the assignee from that day up to this, and that he had in his hands at the time this was made between $1100 and $1200, received from the sale of property which had been placed in his hands as assignee and that this property belonged to these assignors and should be repaid to them, and they sue for the repayment of the sum-stated $1125.16, with interest from August 19,1893.

The second cause of action sets out that certain bonds had been issued by The Union Elevator & Transportation Company and that these were in the hands of the assignee and now remain — some $4000 of those bonds — which belonged to the assignors, and that it should have judgment for the amount of those bonds — alleging, I believe, that defendant ■in error had disposed of them, or had proceeded to or was liable to dispose of them, and that it should have judgment upon these bonds. And this cause of action avers:

> “It was further in said order provided that said defendant should give bond in the sum of twenty-five hundred dollars conditioned that if any creditors of plaintiff who had not consented to the vacation of said trusts should thereafter present to said defendant their claims for payment that said defendant would pay such claims. Said bond was so given by defendant, but plaintiff avers that there were in fact no other creditors of plaintiff excepting such as consented to the vacation of said trust as aforesaid,” etc.

In the answer, the defendant denies that the order of said probate court provided that said defendant should give a bond conditioned that if any creditors of plaintiff who had not consented to the vacation of said trust should thereafter present to said defendant their claim for payment, that said defendant would pay said claims; it denies that said bond was so given by defendant.

The case came on for trial before the court of common pleas, as I have said, and upon hearing of the case a judgment was finally rendered in favor of the defendant, and it is to that judgment, that the petition in error is prosecuted. It is said, among other things, that the judgment rendered by the court was against the weight of the evidence, and contrary to law. Some other points were made in regard to the rulings upon the evidence, but these are the main questions that are presented before us and which we shall pass upon.

Now, taking these causes of action inversely in their order as set fnrth in the petition, we have to say in regard to the bonds, that it appears, so far as we can understand the evidence that these bonds which are mentioned were a part of certain bonds which were issued by The Union Elevator & Transportation Company — a separate corporation, and which was the owner of an elevator on the other side of the river, but the stock of which company was owned very largely — and perhaps exclusively — by Mr. Backus, Sr. and the members of his family, and they were delivered under an arrangement whereby they were to be used to secure the payment of an indebtedness to The Second National Bank of Toledo-an indebtedness of the A. L. Backus & Sons Company — which indebtedness amounted to about $92,000, and for which it would seem the bank held certain collaterals in the shape of warehouse receipts for grain of different kinds, with the proviso that if any of the bonds should remain at *791the close or winding up of the affairs with the bank, that they should be turned over and hela for the benefit of the parties interested in 'them, and it is admitted there were remaining at the close of the transaction some $8,000 worth of bonds, and these bonds were, by Mr. Charles F. Adams, the trustee of the bank, in the first instance turned over to Alexander Backus and he allowed $4000 of them to be used by Samtrel R. Backus and the remaining $4000 were turned over to Mr. Edwin Jackson, a brother-in-law, and whose wife was a stockholder in the Elevator Company.

Upon the evidence adduced in regard to this matter, it was found by the court below that there was not sufficient evidence, or no evidence, as I understand it, to show that the plaintiffs here — The Abner L. Backus & Sons Company — was the owner of these bonds at any time, or was entitled to them; and in that conclusion we agree. We are unable to see, from examination of the testimony, that Backus & Company ever became the owners of these bonds, or ever became entitled to the proceeds of them, except and in so far as they were used for the payment of the indebtedness of the company to the bank; and it would naturally follow, as we think, if there was any surplus remaining of these bonds, after the execution of the trust, that they would remain for the benefit of those who had orginally issued them or placed ttiem in the trust, to-wit, tin* stockholders of the Elevator Company, and we are thererore of the opinion that the court of common pleas did not err in its decision in regard to these bonds.

As regards the first cause of action, we come to a different conclusion. The report of the assignee to the probate court, made on August 19, 1893 — the assignment having been made on June 13th, and this report having been made on August 19th, which would be about two months after the-assignment was made — and in this report he shows that there has been presented to him a large amount in value of claims and by quite a large number of creditors; that some of the claims amounted to as much as $50,000 and some to $35,000, and so on down, which in the aggregate amounted to quite a large amount of money. He then says:

> “Since said assignment has been made all of the creditors except those hereinafter named have been paid in full and no liability in their favor is now existing and as is shown by the vouchers and exhibits hereto attached, join the assignee in the request to this court that the trust may be vacated, the assignee discharged and he and his sureties released from further liability on account of their prior existing claims. That the following named persons and firms, creditors of said assignor, to-wit” (And then he names four of them) “have been notified by the assignee that he is ready and able to pay them in full the respective amounts with interest, but they have hitherto failed to present any claim against the assignor or receive or receipt for the payment thereof to the assignee. He further shows that he has paid all costs of expense of administering the trust. Wherefore the undersigned asks that he be discharged from the further duties of his trust,’’etc.

Thereupon the probate court made this order, reciting that these creditors had come; reciting the names of the four creditors who had not come in and filed their claims, and finding that it would be manifestly just and for the interest of the defendant-in-error — who would be the assignee here — that he be relieved from the further adminstration of said trust, and then it proceeds:

> *792“And the court being now fully advised in the premises, it is hereby ordered: all of the creditors execept those as above named, in open court consenting thereto; that said trust be vacated and the assignee released and discharged from further liabilities by reason of his trust, upon condition, however, that said Alexander Backus file forthwith a new undertaking in the sum of twenty-five hundred dollars, payable to the, state of Ohio, for the use of the unpaid creditors of said Abner L. Backus & Sons Company, conditioned that the will, on demand, pay all unliquidatedclaims of said corporation. And said Alexander Backus having filed said bond, which is hereby approved, he is hereby discharged from said trust as assignee of Abner L. Backus & Sons Company; ordered that he pay the costs, taxed at $ . ”

Now in regard to the effect of this order, we had the matter before us in the case of State ex rel. Backus v. Millard, Probate Judge, 8 Ohio Circ. Dec,, 672, and on page 675, we say in that case:

> “So far as the bond is concerned, we think the true construction of this order is this: On the application simply to discharge the assignee from his trust, it is shown that all the creditors except four have been paid, and the object and purpose of giving that bond was to secure these four creditors if the bond of the assignee should be cancelled. The language of the order is as follows:

> “That said trust be vacated, and the assignee released and discharged from further liabilities by reason of his trust; upon condition, however, that said Alexander Backus file forthwith a new undertaking, etc.”

> “We take it that the assignee was discharged. The intention of the court was to discharge him. The only thing that the court was undertaking to do was, if it made a cancellation of the bond, to secure these creditors who had claims or accounts against the estate; and thereupon the order provides that as a condition of that cancellation a new bond be given to take the place of the other. The clear effect of that is to discharge the assignee,without reference to the facts whether he gave a bond or not.”

Now it will be noticed that in the petition it is said that the court made an order that he give a bond to pay the claims of creditors upon presentation. They have denied in the answer that he gave any bond' of that kind, or that any order was made. No evidence is offered in court save and except this journal entery, that any bond was given of any kind; and, if any was given, what the terms of it were, we do not know, nor — I will say — do we consider it very material.

In the case of Garver v. Tisinger, *46*O. S., 56 it is held by the Supreme Court of Ohio, that it is competent for the creditors and for the assignee and assignor, all agreeing, to consent to the discharge of the assignee at any time and to the closing up of the affairs of the trust. That had been done in a certain case and an action was sustained for the recovery of an amount of money in the hands of the assignee, that he had received in the capacity of his trust, and upon the determination of his trust it was held that it should be returned to the assignor; so, while there is no provision for this settlement made by the statute, yet by the decision of the Supreme Court of the state, these settlements are favored, and there can be no question in our minds that so far as the creditors who appeared there and consented, and so far as the assignee and assignor were concerned, the trust was closed. Now, in this case, there were four persons who were said to be creditors, who had not then-filed any claims. They had been notified by the assignee, as he states *793in his report, that he was ready to pay them the amount of their claims, but they did not present them and they have not been presented to the present time, and the averment of the petition is that they never have been presented, and there, is no -evidence that they have been. This matter was in 1893.

*King &*Tracy, for plaintiff-in-error.

*L. H. Pike, Seney, Johnson & Friedman, for*defendant-in-error.

Section 6352, Rev. Stat., provides that:

> “Creditors shall present their claims within six months after the publication of the notice hereinbefore provided for, unless further time is allowed by the court to the assignee or trustee for allowance, and the assignee or trustee shall endorse his allowance or rejection thereon.

It appears that this notice or publication was given. There is no denial of that. There has no extension ever been given by the probate court for the parties to file their claims, and the}' have never in fact been presented. It is claimed on the part of the assignee that he retains these $1100 or $1200 to meet these claims whenever they shall be presented.

The Supreme Court, in Carpenter v. Dick, 41 O. S., 295, hold that:

> “Under the statute relating to insolvent debtors the creditor of an assignor, who does not present his claim prior to the payment of a dividend and within six months after publication of the notice of assignment, may afterwards present his claim and receive a dividend thereon, equal to that paid to other creditors in case there is money or assests remaining in the hands of ths assignee sufficient to make such payment.

How long this assignee claims that he may hold this money, does not appeal by the record. He claims the right still to retain it. We think under the state of facts existing that these creditors were still bound to present their claim within six months and that if the claims were not presented within six months they were barred, unless the creditors could show that there were assests in the hands of the assignee belonging to the estate; but we see nothing in the action of the probate court which would prevent the assignee from pleading that he had administered upon the estate; that he had paid over the money to the assignor and that he had no money in his hands under the trust, to be distributed, and we are unable to see any reason why he might not at the expiration of said six months from the giving of the notice have paid over these moneys to the assignor and have plead that forever afterwards as a bar to any action or claim that might be presented by these four creditors. They are not here presenting their claims; it is the assignee himself still saying that he must hold this money for the benefit of these parties. We think that the determination of the trust Will bar those claims. We think the right of the assignor is clear to recover this money.

The judgment of the court of common pleas was for the defendant. Under the pleadings in the case, we do not see that we can render a judgment upon the facts stated in the bill of exceptions. The case will be returned to the court of common pleas for a new trial.