In re Nichols' Estate

HAYNES, C. Appeal from an order settling an account of appellant as assignee of said insolvent debtor. The principal question arises out of the sale of certain property of the insolvent by the assignee, the proceeds of which are embraced in said account, and to which account the Madera Flume and Trading Company, a creditor, filed exceptions. Said property was sold at public auction, after due notice, on the twenty-eighth day of July, 1896, and consisted of a planing-mill known as the “Mechanics’ Mill,” and all its contents, including engines, boilers, belting, four machines, and two horses, two wagons and two sets of harness used in and about said mill, and all of which was used by said insolvent up to the time of filing his petition in insolvency; also about 40,000 feet of lumber, a lot of moldings and mill work, office furniture, including one safe, and the buildings and lease—all of which were sold together as one parcel. At the date of the sale there was subsisting a chattel mortgage to secure the sum of $1,000 upon the engines, boilers, four machines and belting, used in and about the mill, but it did not cover any of the other property. It also appears that the lessor claimed the engines and boilers as part of the realty. When said property was thus offered for sale as a whole, and not in parcels, and before any bid was made, said Madera Flume and Trading Company objected to the sale in that manner, and demanded that it be sold in parcels, but [858]said objection and demand were disregarded by the assignee. Several bids were made, and among them said Madera Flume Company bid $675, and Frank Mabury then bid $700, and, that being the highest bid made, the property was struck off to him, and before he paid the purchase money said Madera Flume and Trading Company repeated its said protest and demand. When the assignee filed his said account he reported said sale, and prayed that his account be settled and allowed, and said sale approved and confirmed; and in the Madera Flume Company’s exceptions the said objections were in effect repeated, and it was alleged that $700 was an inadequate price, and that if it had been sold in parcels it would have brought a sum largely in excess of $700, and prayed that said sale be not approved or confirmed, nor said account settled or allowed. Upon the hearing evidence was heard touching the value of said property, but said evidence is not set out in the bill of exceptions. It is only said “that the evidence was conflicting as to the value of said property on the twenty-eighth day of July, 1896,” the day on which the sale was made. The court found that at that date said property was of the value of $850, “and would have realized that amount if sold in parcels,” and charged the assignee with the sum of $150.