Mather v. McMillan

• Decision Date: 15 May 1884
• Parties: MATHER, ASSIGNEE, ETC., v. MCMILLAN.
• Court: Wisconsin Supreme Court

60 Wis. 546

19 N.W. 440

MATHER, ASSIGNEE, ETC.,

v.MCMILLAN.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from circuit court, Monroe county.George Graham and Morrow & Masters, for appellant, John L. Mather, assignee, etc.

Tyler & Dickinson, for respondent, Charles W. McMillan.

ORTON, J.

The complaint alleges that the firm of T. P. Wither & Co., on the fifteenth day of September, 1883, made an assignment of their property, both real and personal, to the plaintiff, for the benefit of their creditors, and all the conditions required by the statute were complied with to make the assignment valid on that day. On the twenty-fifth day of the same month, the assignors completed and made a correct inventory of their assets and list of their creditors, as required by law, and on the same day such inventory and list were duly verified by their affidavit, and certified to be correct by the said plaintiff, as such assignee. The complaint further alleges that the “plaintiff and said assignors, by a mistake in computing time, verily believed the twenty-sixth day of September, 1883, to be the tenth day after the execution of such assignment; and on the twenty-sixth day of September, 1883, mistakenly believing the same to be the tenth day after the execution of such assignment, filed in the office of the clerk of the circuit court the aforesaid inventory of assets and list of creditors, such day being the eleventh day after the execution of such assignment,” and that due notice was given to the creditors, etc.; and then the complaint alleges that the defendant, as sheriff of Monroe county, under and by virtue of certain warrants of attachment, seized and levied upon certain personal property of the said assignors, which passed to the plaintiff by said assignment, and detains the same. To this complaint the defendant filed a general demurrer, which was sustained by the court, and the plaintiff appeals from the order sustaining the same.

The only question raised by the demurrer, and argued by the learned counsel in this court, is, did the failure to file the inventory and list of creditors within 10 days after the execution of the assignment render void the assignment as to creditors? Whether such failure rendered the assignment void as to the parties to it, is not the question in this case, for the complaint placed the defendant in the position of representing creditors. The only question in relation to the assignment, in which the defendant is at all interested, is whether the title of the property has passed, by virtue of the assignment, beyond the reach of the attachments. The assignment may be valid as between the parties, and as to all the creditors of the assignor who may not seek to avoid it, for the reason that the inventory and list were not filed in time. These attaching creditors, represented by the sheriff, in the seizure of the property so assigned to satisfy their demands as still being the property of the assignor, disaffirm and repudiate the assignment on the ground that the assignment is void as to them, and all other creditors who contest it. It is only in respect to this attitude of the case, in which the complaint has placed it, that the statute must be examined and construed. The language to be construed is in section 1697, Rev. St.: “and a failure to make and file such inventory and list shall render such assignment void.” The inventory and list, in this case, were not filed within 10 days after the execution of the assignment, but were filed on the eleventh day.

The learned counsel of the respondent insists that this question has been decided in three late cases in this court, viz.: Farwell v. Gundry, 52 Wis. 269;S. C. 9 N. W. REP. 11;Steinlein v. Halstead, 52 Wis. 289;S. C. 8 N. W. REP. 881;Wadleigh v. Scheiderer, 15 N. W. REP. 838.

All that was said by Mr. Justice LYON in the first case, touching this question, is: “Section 1697 creates conditions subsequent, which did not exist before the section was enacted, to-wit, the filing of the inventory and list within a specified time. A failure to file either of these may defeat the title of the assignee. The fact that a breach of either of these conditions may work a forfeiture of title, and thus defeat the trusts created by the assignment, calls for a reasonable, liberal construction of the saving clause in the statute, in favor of the validity of the assignment.” That saving clause referred to is that “no mistake therein [the inventory or list] shall invalidate such assignment or affect the right of any creditor.” It was because the failure to file such inventory and list “within the specified time,” or 10 days of the execution of the assignment, would defeat the assignment, the title of the assignee, or cause a forfeiture of such title, that this court, in that case, felt called upon to put such a liberal construction upon the above saving clause as to embrace a mistake of law of the assignor, in supposing his exemption embraced forty acres instead of one-fourth of an acre of land, and in omitting the forty acres less the one-fourth of an acre from the inventory. Such a strict construction of the forfeiture clause is made the reason for such a liberal construction of the saving clause. Why...