Fuhrman v. Jones , 68 Wis. 497 ( 1885 )

Cassoday, J.

The plaintiff’s right to maintain this action depends entirely upon the question whether the assignment was completed, so as to vest the title'to the goods in question in the plaintiff as against the creditors of his assignor, prior to the time when they were seized by the defendants on the attachments. The statutes make every voluntary assignment or transfer of property for the benefit of or in trust for creditors void as against the creditors of the person making the same, unless completed as therein prescribed. Secs. 1694-1696, R. S. Before taking possession of the property assigned or assuming -any trust under the assignment, the assignee must deliver to tbe county judge or court commissioner, not being a creditor of such assignor, a bond, duly executed to the clerk, in a sum not less than the whole amount of the nominal value of the assets, to be ascertained by the oath of one or more witnesses and of the assignor, with two or more sufficient sureties, freeholders of the state, who shall each testify to his responsibility, and. ■by their' several affidavits 'satisfy the officer talcing such bond — that is to say, such county judge or court commissioner— that the property of such sureties within this state is worth in the aggregate the sum specified therein. Sec. 1694. The county judge or court commissioner, as an ■officer of the law, is to be thus satisfied of the sufficiency of the sureties. This should appear in writing upon the bond itself. Here no such indorsement was made by the commissioner until Jamnuy 18, 1886, ten days after the filing of the. bond, and five days after the last attachment.

Before delivering the copy of such assignment to the county judge or court commissioner for the purpose specified in sec. 1695, the assignee -must, in the presence of the officer talcing such bond, indorse in writing on such copy his consent to take upon himself the faithful discharge of the several trusts specified in the assignment, and that the said copy so indorsed by him is a true and correct copy of the original. Sec. 1696. The object of having such indorsement b3>” the assignee in the presence of such county judge or court commissioner is to secure such action in good faith under official sanction. There was nothing connected with such copy here showing that such indorsement was made in such presence until more than five weeks after the attachments. The fact of such presence resting in parol during that time did not satisfy the statute. Accordingly it is provided that such officer — that is to say, such county judge or court commissioner — must indorse upon such copy of the assignment his certificate that the same is a true copy of the original and of the whole thereof, and that such as-' signee named in such original assignment did in his presence make the indorsement thereon as thus required. Sec. 1696. No such indorsement was made by such officer here until more than five weeks after the seizure of the goods on the attachment, and forty days after the copy was filed with the clerk. Such bond, immediately after its execution, together with a full and true copy of such assignment, must be filed by the officer taking the .same — that is to say, such county judge or court commissioner — in the office of the clerk of the circuit court to whom it is executed. • Sec. 1695. This requirement is to preserve the bond in official custody continuously from the time of its execution, for the benefit of all concerned. Such bond and copy of assignment must be Icept by such clerk in his.office, subject at all times to the inspection of all parties interested. Ibid. Such bond and copy of assignment so to be “ kept ” by the clerk must be completed with such several indorsements and certificate thereon before delivery to such clerk for such keeping. Until the assignment and such' completed copy and bond are so filed with the clerk, the assignee has no right to the property attempted to be assigned, as against the attaching creditors of the assignor. Such is the effect of the repeated decisions of this court. Scott v. Seaver, 52 Wis. 175; Wadleigh v. Merkle, 57 Wis. 517.

This renders it unnecessary to determine whether an attorney for an assignor or assignee, who happens to be the court commissioner who drew the assignment, is competent to make such indorsements and certificate; but the impropriety of acting in such doubly and inconsistent capacities must be apparent. It is plainly "distinguishable from Hammel v. Schuster, 65 Wis. 669.

Of course, the defendants were only-entitled to retain a sufficient amount of the proceeds of the sale of the property to satisfy the executions in their hands/and costs. Although the trial was by tbe court, yet, as it does not appear definitely- whether they received more or less, the judgment of the circuit court is reversed, and the cause is remanded for further proceeding according to 'law.

By the Court.— Ordered accordingly.