Missouri Statute | Act | Code |Debtor-creditor Relations| US Code - US Statute | Chapter 426 Assignment For Benefit Of Creditors

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.

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 1-2-79

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

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 1-2-79

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

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

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

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. (RSMo
1939 § 5746)

Prior revisions: 1929 § 5636; 1919 § 632; 1909 § 905

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 1-2-79

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 1-2-79

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

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

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

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 1-2-79

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

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

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

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

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

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

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

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 1-2-79

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 1-2-79

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

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 1-2-79

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

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

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

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

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

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 1-2-79

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

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

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

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

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

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

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

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

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

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

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