Pittman v. Hopkins , 74 Miss. 563 ( 1896 )

Woods, C. J.,

delivered the opinion of the court.

On the first day of February, 1894, one D. M. McRae executed a general assignment for the benefit of creditors, with preferences, and named the appellant as assignee. The latter accepted the appointment, filed his petition and bond in the chancery court, and became its receiver, and proceeded to administer the assigned estate and to execute the trust confided to him.

Some three or four months prior to the date of the assignment, however, the appellees had obtained judgments against the assignor, in an aggregate sum which was greater than the total value of the assigned property, and these judgments (as very clearly appears from the bill of exceptions and transcript before us), had been duly enrolled, on the proper judgment roll, some months prior to the execution of the assignment. In addition, executions had been issued on these enrolled judgments, and placed in the hands of the sheriff of Wayne county for levy before the assignment was made. It is needless to say that, as there were no other judgment liens or other incumbrances of any sort on the assigned property at the date of the assignment, and, as the assignor was perfectly aware „ of the judgment liens of appellees when he undertook to put his property beyond their reach, and prevent the satisfaction of their liens, and. as the assignee had record notice of the liens when be accepted the trust and entered upon its execution, and actual notice soon thereafter, the rights of these judgment lienors were not affected by the efforts of the assignor or assignee, or both, to postpone their satisfaction to that of the demands of the unsecured but preferred creditors.

The only real question, therefore, for our determination is, can the assignee, who knowingly accepted this trust, which should not and could not have been executed as attempted to be created by the assignor, and who contested with these judgment lienors their indisputable rights in the premises, and who finally lost, be permitted to charge the costs and expenses incurred by him in his effort to secure the property conveyed in the assignment to the preferred and unsecured creditors of the assignor, against the fund derived from the sale of that property ? In other words, shall the costs and expenses needlessly incurred by the assignee, in litigation hostile to the judgment creditors, be wrung out of them, or shall the unsecured creditors, for whose interests the assignee accepted the trust and endeavored to execute it, be made to indemnify the assignee ? The latter, manifestly. If it be objected that the assignee cannot now save himself harmless by going upon the unsecured creditors in whose behalf he fought, the answer to the objection is that it was his own folly which plunged him into unjustifiable costs and expenses, without first requiring the unsecured creditors to give security for his indemnity.

The remittitur entered by appellees for $31.57 gives to appellant all that he was entitled to receive, viewing his right to any costs and commissions most favorably.

Affirmed.