Northern National Bank v. Weed

Cassoday, J.

It is conceded that at the time of executing the several instruments mentioned in the foregoing statement A. Weed & Co. were not indebted to Bardon and Ellis, or either of them, in any sum whatever; that the ■only connection Bardon and Ellis had with any claim against A. Weed & Co. was that Bardon was president of the Ashland National Bank, and a director in the First National Bank of Ashland, and that Ellis was president of the First National Bank of Ashland, and a director in the Ash-land National Bank and in the Security Savings Bank of Ashland, and that A. Weed & Co. were indebted to said several banks in a large amount, as mentioned in said statement, and that the five several instruments mentioned in ■said statement were made, executed, and delivered for the sole use and benefit of said banks, respectively. It appears that just prior to executing the several instruments mentioned, A. Weed & Co. desired and were about to make a general assignment for the benefit of their creditors, but were dissuaded therefrom by Bardon and Ellis, and instead thereof, and at their suggestion, executed the several instruments mentioned. Those instruments covered the great mass of property belonging to A. Weed & Co., and were executed for the purpose of giving the. banks named, respectively, a preference over their other creditors. A. Weed & Go. were hopelessly insolvent, and owed such other creditors, in the aggregate, a very large amount; and, if the transaction mentioned is to stand, it is certain that such other creditors can realize but a small per cent., if anything, on their claims. The manifest purpose of the transaction was for Bardon and Ellis to sell the property covered by the bills of sale and1 deed, and collect the mortgage, and apply the proceeds thereof on the several claims so held by the banks, respectively, jpro rata. We are constrained to, hold that the facts bring the case squarely within the rules of law affirmed by this court in Winner v. Hoyt, 66 Wis. 227; Maxwell v. Simonton, 81 Wis. 635; Fuller & F. Co. v. McHenry, 83 Wis. 573. These cases, and several others which are distinguishable, have discussed the principles involved fully and in detail. It is only necessary here to apply the plain language of the statutes to the case. “All voluntary assignments or transfers whatever of any real estate, chattels real, goods or chattels, rights, credits, moneys, or effects, for the benefit of or in trust for creditors shall be void as against the creditors of the person making the same, unless the assignee shall be a resident of this state,” and the assignment is executed as therein required. Sec. 1694, R. S. Had A. Weed & Co. made such an assignment as they at first contemplated, it would, nevertheless, have been absolutely void had it contained or given any preference to one of their creditors over another creditor. Sec. 1693a, S. & B. Ann. Stats.; ch. 349, Laws of 1883; and ch. 451, Laws of 1887. A. Weed & Co. cannot be allowed to do by way of indirection and circumvention what the statutes thus prohibited them from doing directly.

The exceptions to the statutory rules thus stated, which from time to time have been sanctioned by this court, have either been cases not coming within the purview of the statutes cited, or where tbe instrument has been authorized by some other statutory provision; as, ior instance, a chattel mortgage. Sec. 2314, R. S.; Cribb v. Hibbard, Spencer, Bartlett & Co. 77 Wis. 206; Michelstetter v. Weiner, 82 Wis. 298. This distinction was pointed out in Maxwell v. Simonton, 81 Wis. 635.

It may be said, as it has often been said in such cases, that this decision will operate to give a preference to an attaching creditor. But this court is not responsible for the anomalous provisions of our statutes on the subject. They manifestly prohibit an insolvent debtor from giving preferences in certain ways, and yet allow him to give preferences in certain other ways. The policy of the law on the subject is for the legislature. This court cannot do otherwise than to declare the law as it is found in the statutes.

By the Oourt.— The order of the circuit court is reversed, and the cause is remanded with direction to sustain the attachment, and for further proceedings according to law.

PiNNEY, J., took no part.