Chapter 426 Assignment for Benefit of Creditors

426.120 - Rejected bond valid until new one given — new bond relates back.

Steven Groce, Attorney Advertisement

Such bond shall be valid until such new bond be given and approved, notwithstanding its rejection by the court, and such new bond, when approved, shall relate back, and be operative from the date of assignment.

(RSMo 1939 § 5750)

Prior revisions: 1929 § 5640; 1919 § 636; 1909 § 909

426.020 - Assignee to file inventory, when and where.

It shall be the duty of the assignee, within fifteen days after the execution of the deed of assignment, to file in the office of the clerk of the circuit court of the county in which the assignor, or, if there be more than one, in which any one of them shall reside, unless longer time be allowed by the court for good cause shown, an inventory of the property, effects and things assigned.

(RSMo 1939 § 5740, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5630; 1919 § 624; 1909 § 897

Effective 1-02-79

426.220 - Appeals, how taken — affidavit and bond for.

All appeals allowed by virtue of section 426.210 shall be taken and made by the appellant, or someone for him, making and filing an affidavit that the appeal is not taken for vexation or delay, but because affiant believes that appellant is prejudiced by the decision appealed from, and by giving bond to the state of Missouri in such sum as the assignee may require, and with such sureties as he may approve, conditioned that appellant will prosecute his appeal with due diligence, and pay all cost thereon awarded against appellant.If judgment for costs be rendered against appellant, it shall be against him and his sureties on the bond.In all other respects appeals shall be taken, certified and proceeded with in the same manner as applications for a trial de novo from judgments of associate circuit judges.

(RSMo 1939 § 5760, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5650; 1919 § 646; 1909 § 919

Effective 1-02-79

426.320 - Payments to creditors, when and in what amounts — penalty for failure.

As soon as practicable, and not exceeding one month after the time for an allowance of demands had under this chapter, the assignee or assignees shall pay upon the demands allowed, according to their right, as much as the means on hand will permit, after reserving enough for proper fees, costs, expenses and demands, whose trial is legally continued or removed; and as often thereafter as a dividend of five percent can be paid upon the demands allowed as aforesaid, the assignee or assignees shall give notice thereof by publication, for one week, in the same newspaper in which was published the notice for allowance of demands, or in such other newspaper as the court, or judge thereof in vacation, may direct;and if such assignee or assignees shall neglect or refuse to make payment out of such trust fund, as in this section required, for more than three days after the same have become due and have been demanded by the person entitled thereto, his agent or attorney, or if he or they shall in any wise neglect or refuse to comply with the provisions of this section, he or they shall, for every such neglect or refusal, forfeit and pay to the person aggrieved five percent per month interest on such sum as such person was entitled to at the time of such demand, to be recovered by motion in the court having jurisdiction of said assignment; and any judgment rendered by said court, on the hearing of such motion, shall be against said assignee or assignees and his or their securities on their trust, provided for in this chapter; and such assignee or assignees shall, in addition to such forfeiture, be subject to be dismissed from his or their trust by said court, for such neglect and refusal, on motion and citation for that purpose.

(RSMo 1939 § 5770)

Prior revisions: 1929 § 5660; 1919 § 656; 1909 § 929

426.030 - Inventory to be sworn to.

The inventory shall be accompanied with an affidavit by the assignee, that the same is a full and complete inventory of all such property, effects and things, as far as the same have come to his knowledge.

(RSMo 1939 § 5741)

Prior revisions: 1929 § 5631; 1919 § 625; 1909 § 898

426.130 - Suit on bond, by whom and when brought — damages.

Any person injured by a breach of the condition of the bond may sue thereon in the name of the state to his use, and the damages shall be assessed as on bonds with collateral conditions.

(RSMo 1939 § 5751)

Prior revisions: 1929 § 5641; 1919 § 637; 1909 § 910

426.330 - Assignee shall exhibit condition of assets, when.

Every assignee, upon the reasonable request of any person entitled to any demand allowed, or of his agent, shall exhibit to such person or agent the condition of the assets of the assignment, and give him all reasonable information concerning the same.

(RSMo 1939 § 5771)

Prior revisions: 1929 § 5661; 1919 § 657; 1909 § 930

426.230 - Proceedings in circuit court upon appeal.

Upon such appeal being allowed and certified, as in section 426.220 is required, the court shall become possessed of the case, and shall proceed to hear and determine the same, in the same manner as if such case was pending before a circuit judge on an application for trial de novo from the judgment of an associate circuit judge; and appeals may be taken from the judgment of the court, in the same manner as appeals are now allowed by law from judgments of circuit judges in this state.

(RSMo 1939 § 5761, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5651; 1919 § 647; 1909 § 920

Effective 1-02-79

426.310 - Sale of property assigned, how made.

The circuit court shall make an order for the sale of all the real and personal estate conveyed by any deed of assignment, either for cash in hand, or upon such reasonable credit and upon such other terms and notice as shall appear to the court to be most advantageous to all the parties in interest, and shall, by order, direct the nature of the security to be taken at sales made by assignees under this chapter.Before any sale of such real estate shall be made, the assignee shall give bond, with at least two good securities, to be approved by the court in an amount equal to the value of the real estate to be sold, conditioned that the said assignee will faithfully make the same under such order, and duly account for the proceeds thereof under the provisions of this chapter.

(RSMo 1939 § 5769, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5659; 1919 § 655; 1909 § 928

Effective 1-02-79

426.210 - Decisions of assignee final, unless appeal asked for — appeal to circuit court.

The decision of the assignee in relation to all claims presented to him for allowance shall be final, unless a creditor or some other person interested shall, after a decision is made on any such claim, ask an appeal therefrom; and all appeals so asked shall be allowed by such assignee to the circuit court having jurisdiction of the matter of the assignment, and all appeals heretofore taken shall be transferred to and perfected in such circuit court.

(RSMo 1939 § 5759)

Prior revisions: 1929 § 5649; 1919 § 645; 1909 § 918

426.010 - Voluntary assignment — execution of.

Every voluntary assignment of lands, tenements, goods, chattels, effects and credits made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims; and every provision in any assignment providing for the payment of one debt or liability in preference to another shall be void, and all debts and liabilities (including judgments entered by confession thirty days previous to such assignment) shall be paid pro rata from the assets thereof; and every such assignment shall be proved or acknowledged, and certified and recorded in the same manner as is prescribed by law in cases wherein real estate is conveyed.

(RSMo 1939 § 5739)

Prior revisions: 1929 § 5629; 1919 § 623; 1909 § 896

(1960) The payment of the fee of an attorney employed by the assignor and subsequently by the assignee for the benefit of creditors held not violative of the anti reference statute of Missouri. Abrams v. United States, 274 F.2d 8.

426.110 - If rejected, court to order new bond — failure to give revokes authority.

If the bond be rejected, the court shall order the assignee to give another bond, with sufficient security, to be approved by the court; and if he fail to give such bond within such time as the court shall direct, not exceeding thirty days, his authority further to act as assignee shall be deemed to be revoked.

(RSMo 1939 § 5749)

Prior revisions: 1929 § 5639; 1919 § 635; 1909 § 908

426.410 - Defining the power and authority of assignees.

Every assignee under the general assignment law of this state is hereby declared to be a trustee for the benefit of the creditors of his assignor.Any such assignee shall have the power and authority to prosecute such actions for property and make such defense to claims against the assigned property as a trustee in a deed of trust, or an attachment or execution creditor with a writ levied on such property could prosecute or make.

(RSMo 1939 § 5779)

Prior revisions: 1929 § 5669; 1919 § 665; 1909 § 938

426.200 - Evidence to establish demand.

The assignee shall require such evidence, and no other, of the justice of such demands, as is required to establish demands of a similar character in the circuit court in suits between the original parties to the contract.

(RSMo 1939 § 5758)

Prior revisions: 1929 § 5648; 1919 § 644; 1909 § 917

426.300 - Dismissal of assignee — books to be delivered to successor.

When any assignee shall be dismissed from his trust, the court shall order all the books, papers, effects, moneys and evidences of debt to be forthwith delivered to his successor in the trust, or to such other persons as the court shall appoint to receive the same for the time being.

(RSMo 1939 § 5768)

Prior revisions: 1929 § 5658; 1919 § 654; 1909 § 927

426.100 - Bonds taken in absence of judge, approval or rejection.

The circuit court shall approve or reject the bonds taken in the absence of the judge, and the clerk shall enter the approval or rejection on the record.

(RSMo 1939 § 5748, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5638; 1919 § 634; 1909 § 907

Effective 1-02-79

426.400 - Court may order assignee to compromise debts, when and how.

1.Whenever it may appear for the best interest of the estate assigned, the court, or judge thereof in vacation, may make an order directing the assignee to sell, compound or compromise all bad or doubtful debts upon such terms and conditions as appear proper and most beneficial to the estate; and in like manner the court, or judge thereof in vacation, may make an order directing the assignee to release and discharge any vested, contingent or possible right or interest in or to any estate or effects assigned, upon such terms and conditions as the court, or judge thereof in vacation, may deem proper and just for the best interest of the estate.

2.The assignee shall report his proceedings under this section to the court at its first term, and within the first three days thereof after such proceedings, for approval or rejection, and for such further and other orders as may be deemed proper; provided, any creditor may appear and file his objections to such report within three days after the filing of the report, if the term shall so long continue, if not, within such time as the court may direct, and such objections shall be heard and determined without delay, and nothing in this section authorized to be done by the assignee shall be final until the approval of the court as herein provided; and provided further, that the assignee, before procuring said order, shall give such notice of his application therefor as the court or judge thereof in vacation may direct.

(RSMo 1939 § 5778)

Prior revisions: 1929 § 5668; 1919 § 664; 1909 § 937

426.350 - Assignee may apply for discharge, when and how.

When any assignee becomes satisfied that it is no longer advantageous to the creditors of his assignor to keep the assignment open, he may apply to the circuit court in whose clerk's office the inventory is filed for a discharge from his trust, upon a notice of his intention to make such application, stating the time thereof, which notice shall be published in the newspaper aforesaid, for at least six weeks next before such time, at which time he may file his petition in said court for such discharge; which petition, verified by his affidavit, shall set forth the disposition made of the assets of the assignment to him; what portion of them remains on hand, and their condition; the amount realized from the assets; the particular disposition of such amount; the demands allowed, particularly, with their respective amounts and owners' names, and the sums paid on each, with an offer to deliver into the charge of the court what remains of the assets and the evidence thereof, and accompanied with all vouchers therewith connected.

(RSMo 1939 § 5773)

Prior revisions: 1929 § 5663; 1919 § 659; 1909 § 932

426.250 - Demand of assignee against assignor, how allowed.

If the assignee shall have a demand against the assignor, which he desires to have allowed, he may present a petition to the circuit court stating the particulars of his demand and the amount thereof, verified by affidavit, and thereupon such court shall appoint some suitable person to act temporarily as assignee of such estate, for the purpose of hearing and passing upon such demand.The assignee so appointed shall take an oath that he will faithfully discharge the trust confided to him, and shall proceed to examine the claim, and if the same shall be found to be correct, in whole or in part, he shall allow the amount found to be due, and report his action in premises to the proper court, at a date to be fixed by the judge; and the court shall make an order directing the sum allowed to be paid to the claimant as other allowances are paid, and appeals shall be allowed from the decision of such temporary assignee as in other cases provided for in this chapter.

(RSMo 1939 § 5763; A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5653; 1919 § 649; 1909 § 922

Effective 1-02-79

426.050 - Oath, filing and compensation of appraisers.

The appraisers, or a majority of them, having first taken an oath or affirmation, before some person having authority to administer oaths, to discharge their duties with fidelity, shall forthwith proceed to make such appraisement.The appraisers shall file the appraisement and their oath of office, in the office of the clerk of the circuit court, within five days after they shall have completed the same.The appraisers shall each receive three dollars per day for their attendance.

(RSMo 1939 § 5743)

Prior revisions: 1929 § 5633; 1919 §§ 627, 628, 629; 1909 §§ 900, 901, 902

426.150 - Notice of allowance of assignee's accounts by court, how given.

The court shall, by such order as the circumstances of the case may require, direct the clerk to give notice of the exhibition and filing of such accounts, for such time and in such public newspapers as it shall appoint, and that such accounts will be allowed by the court at a certain time to be stated in such notice, unless good cause to the contrary be shown.

(RSMo 1939 § 5753)

Prior revisions: 1929 § 5643; 1919 § 639; 1909 § 912

426.240 - Judgment certified to assignee and claim allowed, when.

All judgments rendered in favor of any claimant in the circuit court by virtue of the provisions of this chapter, shall be certified by the clerk thereof to the assignee, who shall allow the same, and class it as if such judgment had been rendered by him on the original hearing thereof.

(RSMo 1939 § 5762)

Prior revisions: 1929 § 5652; 1919 § 648; 1909 § 921

426.340 - Failure to exhibit condition of assets — citation of assignee.

Upon petition in behalf of any such person to the circuit 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.

(RSMo 1939 § 5772)

Prior revisions: 1929 § 5662; 1919 § 658; 1909 § 931

426.140 - Assignee to exhibit accounts, when and how — failure — citation — dismissal.

Every assignee shall exhibit, on oath, a statement of the accounts of the trust, with proper vouchers, to the circuit court within sixty days after the execution of the assignment, unless for good cause postponed, and shall file a like statement every ninety days thereafter until such assigned estate is fully settled; and if such assignee shall fail to make such settlement within such times, then on the application of any person interested, the court shall order a citation to issue to such assignee, requiring him to appear in court within a time to be therein named, and exhibit, on oath, a statement of his said accounts; and if said assignee shall neglect and fail to exhibit such accounts within the time named in said citation, the said court shall, on motion, unless for good cause shown, dismiss said assignee from his trust.

(RSMo 1939 § 5752, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5642; 1919 § 638; 1909 § 911

Effective 1-02-79

426.040 - Appraisers, appointment of.

It shall be the duty of the circuit court in whose clerk's office such inventory may be filed to appoint two or more disinterested and competent persons to appraise the property, effects and things so inventoried; provided, that such appraisers may be appointed before the filing of the inventory and may accompany the assignee and make said appraisement at the time of the making of said inventory, and said inventory and appraisement may be made out upon one paper with the affidavits of the assignee and appraisers thereto attached.

(RSMo 1939 § 5742, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5632; 1919 § 626; 1909 § 899

Effective 1-02-79

426.160 - Expense of advertising.

The expense of advertising shall be paid by the assignee, at the time of exhibiting his account, and shall be passed to his credit in such account.

(RSMo 1939 § 5754)

Prior revisions: 1929 § 5644; 1919 § 640; 1909 § 913

426.060 - Additional property, duty of assignee.

If, after making the first inventory, any other property, effects and things conveyed by the deed of assignment shall come to the possession or knowledge of the assignee, his duty in relation thereto, and the duty of the court or judge, and the appraisers, shall be the same as is required of them by this chapter.

(RSMo 1939 § 5744)

Prior revisions: 1929 § 5634; 1919 § 630; 1909 § 903

426.260 - Assignee failing to file true inventory and give bond, court to issue citation.

Whenever it shall be made to appear to the court having jurisdiction that any assignee has neglected or refused, when required by law, to file a full and true inventory, or to give bond, as required by this chapter, the court shall issue a citation to such assignee to appear in court at the time therein specified, to show cause why he should not be dismissed from his trust.

(RSMo 1939 § 5764)

Prior revisions: 1929 § 5654; 1919 § 650; 1909 § 923

426.360 - Application referred to commissioner, when — proceedings.

If no person interested shall, within one week after the filing of such petition, file written objections to such discharge, accompanied by specified reasons, the court shall refer the application to the commissioners of the court, or one appointed for the case, to examine the merits of the application, and report to the court with all convenient speed thereon; and upon the filing of such report, the court shall make such further order in the premises as it shall adjudge right, and may discharge such assignee from all further duty or obligations under the assignment; and, thereupon, shall order such assignee to deliver into the charge and custody of such court such portion of the assets and the evidences thereof as remain in his hands, where they shall be kept with all other papers, connected with such assignment, in such courts and its clerk's office, subject to its future control and disposition.

(RSMo 1939 § 5774)

Prior revisions: 1929 § 5664; 1919 § 660; 1909 § 933

426.070 - Assignor's list of property — filing of bond of assignee — additional bond.

The assignor, his agent or attorney, at the time of the execution of the deed of assignment, shall make a statement, in writing, verified by affidavit, setting forth the general nature and full value of the estate and effects assigned, which statement shall be filed with the deed of assignment for record; and the assignee shall, within three days after the filing of such deed and statement, give bond with at least two good and sufficient securities, to be approved by the court or judge, or clerk thereof in vacation, in double the amount of the estate and effects assigned, and if the appraised value of such estate and effects, when appraised, shall be greater than the value given in such statement, or if the securities in such bond should in any way become impaired or insufficient, the assignee shall, at the time of filing the appraisement, give another bond with at least two good and sufficient securities, to be approved by the court or judge, or the clerk thereof in vacation, in double the amount of the appraised value of the estate and effects assigned.

(RSMo 1939 § 5745)

Prior revisions: 1929 § 5635; 1919 § 631; 1909 § 904

426.170 - Demands against estates, how and when allowed.

The assignee shall appoint a day, within three months after the date of the assignment, and a place, which shall be the county seat of the county where the inventory is filed, or such other place in said county most convenient to all the parties in interest, where any court of record may be lawfully held, when and where he will proceed publicly to adjust and allow demands against the estate and effects of the assignor.

(RSMo 1939 § 5755)

Prior revisions: 1929 § 5645; 1919 § 641; 1909 § 914

426.370 - If objections made, court to determine same, when and how.

If objections be made as aforesaid, to such application, the court shall cause the same to be considered, and shall determine the same, as provided for by rules of the court or special orders made therein.

(RSMo 1939 § 5775)

Prior revisions: 1929 § 5665; 1919 § 661; 1909 § 934

426.270 - On return of citation, court may order inventory and bond filed or dismiss assignee.

On the return of the citation, the court may require the assignee to file an inventory and to give bond, with good and sufficient security, in such time as it may deem reasonable, or may proceed at once to dismiss such assignee from his trust.

(RSMo 1939 § 5765)

Prior revisions: 1929 § 5655; 1919 § 651; 1909 § 924

426.390 - Proceedings when temporary assignee fails to act, how conducted.

When, in any case of assignment now or hereafter pending, the temporary assignee appointed according to section 426.250, has failed or shall fail to act, or to make the report upon claims allowed by him as in said section mentioned, then it shall be the duty of the circuit court, at any session during the pendency of the matter of such assignment, to hear such evidence touching the action of such temporary assignee in the premises, or touching the validity of the claims of the general assignee, as he may offer; and if it appear that said claims had been, in fact, regularly allowed, or that they are just, the court shall allow the same, and order them to be paid as other claims.

(RSMo 1939 § 5777)

Prior revisions: 1929 § 5667; 1919 § 663; 1909 § 936

426.290 - Assignee, vacancy — appointment.

The court having jurisdiction, or the judge thereof in vacation, shall have power to appoint an assignee in all cases where a vacancy occurs in the trust, and like bond and security shall be required and given by the assignee so appointed as are required and given by an assignee appointed by an assignor.

(RSMo 1939 § 5767)

Prior revisions:1929 § 5657; 1919 § 653; 1909 § 926

426.090 - Bond, where filed and recorded — approval.

The bond shall be filed in the office of the clerk of the court in which the inventory is filed, shall be approved by the court, or in the absence of the judge, by the clerk and shall be by the clerk recorded in a book for such purpose, to be kept in his office and labeled "assignments".

(RSMo 1939 § 5747, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 5637; 1919 § 633; 1909 § 906

Effective 1-02-79

426.190 - Assignee may administer oaths and examine witnesses.

The assignee shall have power to administer all necessary oaths to debtors, creditors and witnesses; and may examine them on oath, touching any claim exhibited to him for allowance.

(RSMo 1939 § 5757)

Prior revisions: 1929 § 5647; 1919 § 643; 1909 § 916

426.280 - Insolvency or removal from state of surety, proceedings.

The like proceedings as are prescribed in sections 426.260 and 426.270 may be had whenever it shall appear to the court that any person who shall have become security for any assignee, in any bond given for the due execution of his trust, has or is likely to become insolvent, or has removed, or is about to remove from the state.

(RSMo 1939 § 5766)

Prior revisions: 1929 § 5656; 1919 § 652; 1909 § 925

426.380 - Appeals, how taken.

In any proceeding under this chapter, appeals may be taken from the judgment of the court in the same manner as appeals are now allowed by law from judgments of circuit courts in this state.

(RSMo 1939 § 5776, A. 1949 S.B. 1118)

Prior revisions: 1929 § 5666; 1919 § 662; 1909 § 935

426.180 - Notice, how given — creditor failing to present at proper time, precluded — exceptions.

The assignee shall give notice of the time and place of adjusting and allowing demands against the estate of his assignor, by advertisement published in some newspaper printed in the county, or, if there be none, in the one nearest the place where the inventory is filed, for four weeks successively, the last insertion to be at least one week before the appointed day; and also, whenever the residence of any of the creditors is known to him, by letter addressed to such creditors at their known or usual places of abode, at least four weeks before the appointed day.The assignee shall attend at the place designated in said notice in person, on said day, and shall remain in attendance at said place on said day, and during two consecutive days thereafter, and shall commence the adjustment and allowance of demands against the trust fund at nine o'clock a.m., and continue the same until five o'clock p.m., of each of said three days; and all creditors who, after being notified as aforesaid, shall not attend at the place designated during the said term, and lay before the assignee the nature and amount of their demands, shall be precluded from any benefit of said estate; but the hearing on any demand presented at the time may be continued, for good cause shown, to such time as is deemed right; provided, that any creditor who shall fail to lay his claim before said assignee during said term, on account of sickness, absence from the state, or any other good cause, may, at any time before the declaration of the final dividend, file and prove up his claim, and the same may be allowed, and the remaining dividends paid thereon, as in the case of other allowed claims.

(RSMo 1939 § 5756)

Prior revisions: 1929 § 5646; 1919 § 642; 1909 § 915

426.080 - Bond, condition of.

The bond shall be taken in the name of the state of Missouri, and the condition shall be as follows:

The condition of this obligation is such that if the above bound ______, assignee of ______, shall, in all things, discharge his duty as assignee of ______, aforesaid, and faithfully execute the trust confided to him, then the above obligation to be void; otherwise to remain in full force.