Raudenbush v. Bushong , 2 Sadler 172 ( 1886 )

Opinion by

Mr. Justice Green:

The extension agreement contained the following clause: “This agreement not to be binding unless all the depositors of $100 and upwards sign this agreement.” It was a proved and entirely undisputed fact that the extension agreement was not signed by “all the depositors of $100 and upwards.” Several positively refused to sign. By the express terms of the instrument, therefore, it was not binding upon the plaintiffs.

In consequence of this condition of things, they were at liberty to assert any rights of which they were possessed, so far as this paper was concerned. They chose to bring suit against Bushong & Bro.; obtained judgment against them, and issued a writ of attachment in execution upon their judgment. Having done this, and served their writ upon the garnishees, defendants in this case, their right to recover is resisted chiefly upon the ground of estoppel, but also upon the ground that a complete title to the moneys attached had passed to the creditors, of less than $100.

We cannot perceive any basis whatever for the second of these contentions. The title of this class of creditors has nothing to-rest upon but a preference given by the extension agreement, and the assignments of the judgments obtained by Bushong & Bro. against the garnishees, which assignments contained the same preference. Neither the extension agreement nor the assignments of the judgments were ever recorded, and they are consequently void as against any of the creditors of Bushong & Bro. who choose to assert their invalidity, by virtue of the 5th section of the act of 1818 (Purdon’s Digest, 121, pl. 13).

As for the delivery of the notes to the trustees, it certainly could pass no title superior to the authority under which it was made. While it is true that the trustees were chosen at a. meeting of. creditors, their authority to receive the notes in question in prejudice of the plaintiffs’ rights depends upon the efficacy of the extension agreement; and that, as we have seen, does not bind them.

The only other defense is the alleged estoppel, but it is withr out merit. The only affirmative positive act of the plaintiffs, was the signing of the extension agreement. But this did not tie their hands, because by its own terms it was inoperative. Their abstinence from action during five years no more estops them than does a similar abstinence on the part of an ordinary creditor in prosecuting his lawful remedies. What else is there ?'

A meeting of creditors, an appointment of trustees to whom Bushong & Bro. delivered a mortgage of their real estate for the benefit of their creditors, and an acquiescence by the plaintiffs; a silent acquiescence in the proceedings of the trustees-under the mortgage. But there is no proof that the plaintiffs were present at the meeting of creditors by which the trustees-were appointed, or in any manner participated in their appointment or in their action, or even uttered a word, or did an act,, misleading any other creditors to the belief that they had abandoned, or intended to abandon, any legal rights of which they were themselves possessed as creditors. In such cireumstances there is nothing to support an estoppel.

If the plaintiffs had obtained any advantages they were not bound to communicate that fact, nor to withhold the knowledge of it on peril of losing them. Let it be granted that the delivery of the mortgage was in part execution of the extension .agreement, still it could not legally bind those who were not bound by the terms of the agreement. In every point of view, :it seems to us the plaintiffs were entitled to recover so far as .anything contained in the present record is concerned. The assignments of error are all sustained.

Judgment reversed, and new venire awarded.