Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1895-04-18

nlhtlu OF remain llhcndllenbeu, bnen 50 lar |
as the relative positions of these two classes
OF Creditors are concerned result will he
reached in this court different from that |
which would have been attained If the
legal course OF administration had not
been interrupted by these proceedings.
suppose the execution creditors, with
the mortgage creditors, had been allowed
to pursue their legal remedy to the finish,
what would have been the results? The
taxes, whose liens had not expired, would
have been paid iirst ont of the proceeds of
the sale of the realty and the remainder
applied to the mortgage debt, and the
whole of the proceeds of the sale OF the
personality, would have been applied to the
execution debts in the order of their-pr-
GRITTY, Though the collector might have
seized the personal property and sold it,
yet he would have been bound if he had
done SO, to have applied the entire pro-
ceeds, less costs, to such executions as were
prior to the date of his seizure, and then
follow his remedy against the land.
Now the purpose OF the act, under which
these proceedings were instituted, was not
to disturb existing legal rights and priori,,
tles-not to shave off of some claims and
add to others, in order to adjust the COM
plicated affairs of insovent corporations
To ideal standards Of right and wrong, but
to wind up the business OF such concerns
in conformity with the rules of equity,
one of which is to follow the law where it
directs or where il has determined the re-
latiOns of rival or contesting creditors.
The receiver, however, alleges as rea-
son for having paid the real estate taxes
out OF the personal fund in hand, that it
was to avoid the seizure and sale OF the
personal property for the taxes and the
confusion and embarrassment to himself
and the estate that would probably have
followed such proceeding.
IL IL. bod
good faith and did what he thought was
best. Perhaps it was the wisest course
under the circumstances that he could
| have pursued. But can such considera-
| tons as these he intcrpJsed to prevent this
court from preserving the equities spring
ing out Of such conditions by placing the
parties concerned in the same positions
relatively, with regard to the fund in court,
| that they occupied with the regard to the
| personal property prior To- the appoint
ment of the receiver? Certainly, not, |
| shall therefore order the sum agreed upon
AS applicable to the execution of Ain l..
LORD to he increased to the extent it was
diminished by the payment of the taxes
IN question out OF any share Of the remain
| ing fund that may be apportioned to the
| Fruit Growers National Bank OF SMYRNA,
it being the benefited mortgage ere ditor..
The next question arising out OF the
| facts stated Is How shall che remainder
of the fund be distributed?
On the part Of the judgment creditors it
is cUntended that their debts, on account
of their superior grade, should have pre-
cedence over the claims of the simple con-
tract creditors; and Oh the part Of the
simple contract creditors, it is commended.
that all debts in u court of equity stand on
an equal footing and should be paid
ratably without regard to their form OF
grade.
1t is not disputed that the latter conten-
ton is the equitable mode of distributing
the assets OF an lnsUlyent person or cor
poration.
But the solicitors for the Judgment credi
tors insist that this fund is a legal asset
whose application is directed by law from
which il cannot be divorced by its remova
from a legal To an equitable jurisdiction
There can be no question that this fund il
legal asset and ii il be true that the Law
does recognize such preference there is at
end of all controversy, so far as tn
simple contract creditors are concerned, TO
1t IS certain that the mere fact of its trans
fer from the one jurisdiction to the othe
, will not exempt it from the operation o
the law of its original jurisdiction. tn
rule governing its superintendent, or dis
tribution, at law would still cling to it a
ellcctually as il it were being administers
in legal tribunal
But is there such law? IL not thel
, there is nothing to hinder or restrain TIN
operation of the principle that equality
. equity" Let us see All the authorize
cited by the solicitors for the judgmen
} creditors upon this point, refer to tn
/ common law rule regulating the distribt
ton of the assets OF insolyent decedents
4 estates.
3 But that rule is not in force in thi
| State, because it hnS been superseded b
the provisions Of Our own statute in rela
$ ton to the same subject Although on
1 statute, and the common law may agree i
s many particulars, yet that fact does ne
S give them concurrent authority-the or
o must be treated not as supplement- u
Y but as an entire substitute for the othe
e Wherein the statute and the common la
d agree or diller touching Il distinct subjet
d the statute must prevail. Also ii the LeSi
II lature undertakes to provide for the req
k lation of human conduct in respect to
n specific matter or thing already covered
S the common law and parts of which al
o omitted from the statute, such omission
h may be taken generally as evidences of Il
}. legislative intent to repeal or abrogate Il
D. same. Take for example our own statu
It of frauds. 1t does not contain some of Il
e provisions of the English statute, but u
g omitted portions thereof for the reasol
}. before stated have never been held to be
Is force in this State, since the enactment
IL our own statute.
le Now if our mode of distributing IL
ID assets of deceased persons is To control u
" apportionmenI of the fund representa-
Y. the outstanding accounts OF the debt
10 corporation we must look to our oy
ut statute, and not to the common law as T.
source OF our guidance and direction.
IL At this point another inquiry arises.
ne the provisions of our statute apply sure
nc not Ii the fund in controversy had be
brought into this court by an executor
It's administrator. on creditors bill or
nc some other way, it would have to be d
ne tTibuted according to the directions of O
r. own statute which does prefer judgme
III over simple contract creditors. But it "
not brought here by such an officer. 1t "
mt deposited in the registry of this court by t
Dy receiver OF the LORD and Polk Chemit
,al Co., who was appointed under au
he which relates exclusively to insolvcnt c.
ch porations ami which does not prescri
ud the order in which its debts shall be pa
ms The analogy between the duties OF d
re. receiver and the duties OF AN assigI
under a voluntary assignment in bar
~. ruptcy, is certainly more striking than I
les analogy between his duties and those of
les administrator.
OF And if we are to look for q rule outs
be of the principle of equity to regulate
in distribution uI funds like that with VIII
be we arc now dealing, aud AS to which {
he code is absolutely silent, we might u
on with more favor to the provision of {
insolyent act relating to voluntary ASST
ng ments which directs a pro rata distriput
~, of the assets of the assignee ampng all
d creditors, than we could to the statute
le5 regard TO the sediment of personal esta
ans Why? Because the conditions are IN
RAJ nearly alike and the modes OF distrbuJ
is assets the same. but however COMP
xes the likeness or analogy in these respe
dc. we cannot call to our aid this statute
Ich | solving the problem involved IN the app