Haben v. Harshaw

• Decision Date: 29 January 1884
• Citation: 18 N.W. 426,59 Wis. 403
• Parties: HABEN, ASSIGNEE, ETC., v. HARSHAW, SHERIFF, ETC.
• Court: Wisconsin Supreme Court

59 Wis. 403

18 N.W. 426

HABEN, ASSIGNEE, ETC.,

v.HARSHAW, SHERIFF, ETC.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Appeal from circuit court, Winnebago county.Eaton & Gruenewald and Finch & Barber, for appellant, Andrew Haben, assignee, etc.

Pike & Van Keuren and Weisbrod & Harshaw, for respondent, W. D. Harshaw, sheriff, etc.

TAYLOR, J.

This action is in fact a contest between some of the creditors of one Jane E. Bigger and her assignee, Andrew Haben. The facts are substantially as follows: On the twenty-third day of February 1882, Jane E. Bigger made an assignment of all her property not exempt from execution, to the appellant, Andrew Haben, for the benefit of her creditors, giving preferences. The assignment was made under the provisions of chapter 80, Rev. St. 1878. The assignee gave the bond required by section 1694, Rev. St. On the same day the bond of the assignee, together with a copy of the assignment, with the consent of the assignee indorsed thereon, of his acceptance of the trust and his certificate that such copy was a true and correct copy of the original, also indorsed theron, together with the certificate of the officer required by section 1696, were filed in the office of the clerk of the circuit court of the county of Winnebago. On the third of March, 1882, the sheriff seized the property of said Jane E. Bigger upon an attachment issued in an action by some of her creditors, and on the sixth day of March, 1882, the assignee, Haben, commenced this action against the sheriff, alleging that he was the lawful owner of said property under said assignment, and charging that the taking of the same by the said sheriff was a wrongful and tortious taking, and claims as damage the value of the property taken. The defendant testified the taking by virtue of the attachments against Jane E. Bigger, and denied the title of the assignee, Haben.

On the trial in the circuit court the plaintiff, in order to establish his title to the property, introduced in evidence the assignment, the affidavits of value of the assigned property, the assignee's bond, the inventory of the assignor, list of creditors, and the affidavits attached thereto. The defendant introduced the records of the proceedings in the attachment actions against Jane E. Bigger. After the evidence was closed the circuit judge directed a judgment in favor of the respondent, Harshaw, and from that judgment that plaintiff, assignee, appeals to this court.

The regularity of the proceedings on the attachment was not impeached upon the trial, nor in this court; and it is not claimed by the appellant that there was any error committed by the learned circuit judge in directing a judgment for the defendant. If it shall be held by this court that the assignment to Haben was void for any reason, except that they claim if the assignment was void only because a proper inventory was not filed within 10 days after the delivery of the assignment, as required by section 1697, Rev. St., then the attachment proceedings were premature, and for that reason the plaintiff was entitled to a verdict.

The learned counsel for the respondent takes several exceptions in this court to the validity of the assignment itself for matters appearing upon the face thereof. The assignment is peculiar, but we are unable to say that there is anything appearing on its face which should render it void. The facts in regard to the assignor appear to be these: She was doing business as a merchant in the city of Oshkosh under the name of “Bigger & Co.,” but the words “Bigger & Co.” meant Jane E. Bigger. She had no partner, but used a name indicating a partnership for purposes known to herself only. In the assignment she kept up this partnership style, and first makes an assignment of all her property held by her as the firm of “Bigger & Co.,” of which she claims to be the sole member, and directs how that property shall be distributed among her creditors. She then makes a further assignment, in the following words:

“ Fifth. And whereas, the said first part is justly indebted to sundry persons, in divers and sundry sums of money, and is unable to pay the same with punctuality in full, in order to have the first part's assets, property, and effects, aside from said firm property of Bigger & Co. aforesaid, applied in and towards the payment of said debts, has concluded to execute these presents.

“ Sixth. The said first, in consideration of the premises, and of the sum of one dollar to the first part paid by the said second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, delivered over, and conveyed, and by these presents does grant, bargain, sell, assign, deliver over, and convey unto the said second part, and the second part's successors or assigns, all and singular, the interests, estate, property, and effects, real, personal, and mixed, of every kind, nature, and description, and wheresoever the same may be situated, of the said first part, which is held and owned by the said first part, aside and other than belonging, applicable to the firm of Bigger & Co., except such property as, by law, is exempt from execution, or otherwise, for the payment of debts; to have and to hold the same and every part and parcel thereof, with the appurtenances, to the said second part, and the second part's successors and assigns in trust, nevertheless, to and for the following uses, and purposes.

“ Seventh. The said second part shall forthwith take possession of all and singular the estate, property, interests, and effects, hereby lastly above assigned, transferred, and conveyed, and set over, or intended so to be, and shall with all reasonable diligence sell and dispose of the same, and convert the same into money, and with all reasonable diligence shall collect any and all such debts, bills, promissory notes, bonds, accounts, choses in action, claims, demands, and money, or so much thereof as may prove collectible.”

By these extracts from the assignment it is apparent that the assignor claimed to have assets other than those which she described as belonging to the firm of “Bigger & Co.,” and that she intended to make an assignment of such other assets to the assignee for the benefit of her creditors as well as those she owned as “Bigger & Co.” Her idea undoubtedly was that the property she owned as a merchant doing business as “Bigger & Co.” was a class of property different from that which she had acquired and owned as Jane E. Bigger; and possibly the attorney who drew the assignment might have supposed there was an essential difference in the two kinds of property so held by her which it would be right and proper to preserve in making the assignment, although it was all in fact owned by Jane E. Bigger. Whether there was any valid reason for making the distinction which was made by the assignment it is quite unnecessary to decide, as the assignment, as made in the form made, was clearly sufficient to pass to the assignee all her assets, however owned or held by her, and it cannot be said, therefore, that it appears on the face of the assignment that any assets of the assignor were intended to be or were in fact reserved to her. All the property owned by Jane E. Bigger, except such as was exempt by law, clearly passed by the assignment to the assignee. We see nothing in the preferences given by the assignment which could render it void. Jane E. Bigger being the same person in fact as “Bigger & Co.,” all her debts were the individual debts of Jane E. Bigger, and whether the...