McClure v. Campbell

• Decision Date: 27 March 1888
• Citation: 71 Wis. 350,37 N.W. 343
• Parties: MCCLURE v. CAMPBELL.
• Court: Wisconsin Supreme Court

71 Wis. 350

37 N.W. 343

MCCLURE

v.CAMPBELL.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from superior court, St. Croix county; E. B. BUNDY, Judge.

This action is to recover $1,195, being the proceeds of a quantity of personal property seized in St. Croix county, in this state, by the defendant, Campbell, as sheriff of said county, under and by virtue of a writ of attachment sued out by one Johnson against the property of Gillespie & Harper, a copartnership firm, theretofore doing business in Minnesota and this state. By an arrangement between the parties, the sheriff sold the property, and retains the proceeds subject to the determination of this action. Johnson obtained a judgment in his action against Gillespie & Harper, and issued execution thereon, which the sheriff levied upon such proceeds. Johnson was named herein as a defendant, but the summons was not served upon him, and he has made no appearance. The plaintiff, McClure, claims the proceeds of the property, under an assignment executed to him by Gillespie & Harper, in the state of Minnesota, pursuant to chapter 148 of the General Laws of that state for 1881. The trusts specified in the assignment are that the assignee shall distribute the proceeds of the assigned property to those creditors of the assignors who shall file releases of their demands, and, if a surplus remains after paying such debts, he shall pay the same to the assignors. The plaintiff, McClure, Johnson, and the members of the firm of Gillespie & Harper are residents of the state of Minnesota, and were such residents when the assignment was executed. Gillespie & Harper had real and personal property, both in Minnesota and this state. The property thus seized and sold was, when seized, in use in and about a saw-mill in St. Croix county, owned and operated by Gillespie & Harper before such assignment, but was then in possession of the assignee. No question is made on the pleadings, and there is no dispute as to the facts. The circuit court held that the plaintiff took no title to the property in this state thus seized and sold, and hence was not entitled to the proceeds thereof, and gave judgment for the defendant accordingly. The plaintiff appeals from the judgment.Fayette Marsh and Ray S. Reid, for appellants.

The assignment must be governed by the lex loci contractus, and being valid under the laws of the state in which it was executed, is valid everywhere. Smith v. Railroad Co., 23 Wis. 269. In Page v. Lumber Co., 16 N. W. Rep. 700, an assignment was valid in the state of Wisconsin, and, although it contravened the statute in reference to assignments in Minnesota, was recognized in that state as valid and effectual to transfer personal property wherever situated. An assignment giving preference to certain creditors is valid in Wisconsin.Ball v. Bowe, 49 Wis. 495, 5 N. W. Rep. 909. As a matter of comity, the assignment should be effectual in both states. Bentley v. Whittemore, 19 N. J. Eq. 469;Moore v. Bonnell, 31 N. J. Law, 90. Also a creditor should not be permitted to go into a foreign jurisdiction, and there seize personal property of the debtor in violation of the policy of his own state, and thus obtain an undue advantage over other creditors, also residents and citizens of his own state. He should be estopped from raising the question as to the validity of the assignment or not in a foreign state when he seeks the aid of the court to defeat the settled policy of his own. Einer v. Beste, 32 Mo. 240, 249-251;Thurston v. Rosenfield, 42 Mo. 475;May v. Wannemacker, 111 Mass. 208;Dehon v. Foster, 4 Allen, 545;Dehon v. Foster, 7 Allen, 57;Train v. Kendall, 137 Mass. 366;Butler v. Wendell, 23 N. W. Rep. 460;Green v. Gross, 12 Neb. 117, 10 N. W. Rep. 459;Chafee v. Bank, 36 Amer. Rep. 345, 71 Me. 514;Fuller v. Steiglitz, 27 Ohio St. 355;President, etc., v. Minor, 48 Amer. Dec. 727; Richardson v. Leavitt, 45 Amer. Dec. 90: Sanderson v. Bradford, 10 N. H. 260. The assignment is a voluntary one for the benefit of creditors, and as such must have all the force and effect of a voluntary assignment, as distinguished from the case where the courts seize the debtor's property under insolvent laws, and convey to an assignee without any voluntary act of the debtor. Burrill, Assignm. § 304; Shelby v. Bacon, 10 How. 56;Lapp v. Van Norman, 19 Fed. Rep. 406;Adler v. Ecker, 2 Fed. Rep. 126;Griswold v. Railroad Co., 9 Fed. Rep. 797;Lehman v. Rosengarten, 23 Fed. Rep. 642.

H. L. Humphrey, for the respondent.

The assignment is void under the laws of Minnesota. May v. Walker, (Minn.) 28 N. W. Rep. 252. The assignment does not conform to the laws of Wisconsin in respect to the transfer of property, and is therefore void. Auley v. Osterman, 65 Wis. 118, 25 N. W. Rep. 657, 26 N. W. Rep. 568;King v. Glass, 34 N. W. Rep. 820;Manufacturing Co. v. Prall, 9 Conn. 487. It exempts all property exempt by the laws of Minnesota when the personal property in this state must be governed by the laws of this state. The assignee is not a resident of this state, as required by statute. Rev. St. Wis. § 1694. Laws of a state have no force beyond its territorial limits, and should not be allowed to operate in another state when such state, or one seeking redress before its tribunals, would suffer by its application. Bank v. Lacombe, 84 N. Y. 367. Every state may by positive laws regulate as it pleases the disposition of personal property found within it, and may prefer an attaching creditor to a foreign assignee, and no other authority has a right to question its determination. Holmes v. Remson, 4 Johns. Ch. 470. The law of domicile has no force in a state which has by positive law proscribed a method of transfer or disposition of property within it. Where law is imperative, comity must yield. Paine v. Lester, 44 Conn. 196;Upton v. Hubbard, 28 Conn. 275;Osborn v. Adams, 18 Pick. 245.

LYON, J., ( after stating the facts as above.)

Chapter 148, Gen. Laws Minn. 1881, under which the assignment in question was made, is entitled “An act to prevent debtors from giving preference to creditors, and to secure the equal distribution of the property of debtors among their creditors, and for the release of debts against debtors.” The act provides that whenever the property of any debtor shall be attached or levied upon by any writ or process from a court of record of that state in favor of any creditor, or garnishment made against any debtor, such debtor may, within 10 days after such levy or garnishment, “make an assignment of all his property and estate, not exempt by law, for the equal benefit of all his creditors, in proportion to their respective valid claims, who shall file releases of their debts and claims against such debtors as hereinafter provided.” The act then provides that, upon such as signment being made, the attachments, levy, or garnishments shall be dissolved,and the officer shall deliver the property to the assignee, unless the latter elect to retain the process for the benefit of all such creditors. Section 1. It is further provided in section 10 that “no creditor of any insolvent debtor shall receive any benefit under the provisions of this act, or any payment of any share of the proceeds of the debtor's estate, unless he shall first have filed with the clerk of the district court, in consideration of the benefits of the provisions of this act, a release to the debtor of all claims other than such as may be paid under the provisions of this act for the benefit of such debtor; and thereupon the court or judge...