Mowry v. White

Dixon, C. J. It was not necessary that the affidavit prescribed by sec. 5, ch. 45, R. S., should have been annexed to the mortgage, or copy on file in the office of the clerk of the city of Oshkosh. Chapter 213, Laws of 1860, does not require this. It was enough that the proper affidavit was made, annexed and filed in the office of the town clerk of the town of Menasha, where the mortgagor resided. The mortgage is valid as to the logs cut before its execution and delivery, but not as to those cut afterwards. Single v. Phelps, 20 Wis., 398. Nor did the mortgagee acquire any interest in the logs cut afterwards, by reason of their having been intermixed with those cut before the mortgage was executed. It is the willful and indiscriminate intermixture of the goods of another with one’s own, so that they cannot be distinguished, which entitles the owner of the goods so intermixed to hold the whole. The intermixture was not willful. The mortgagee having stipulated in the mortgage for a lien on the logs to be cut, as well as those already cut, his assent to the intermixture must be presumed. Such was, no doubt, the intention of the parties. The logs having been intermixed with the assent of the parties, and it not appearing that there was any difference in the quality or value of those cut before and those cut after the execution of the mortgage, it follows, according to the rule established in Young v. Miles, 20 Wis., 615, that the mortgagee must share the logs ratably with the attaching creditor of the mortgagor, in proportion to the quantities cut before and after the mortgagee acquired his lien. This rule applies to all the logs except those cut on the lands of Weed, Gumaer & Co. As [422] to those, the title of the mortgagee does not depend upon the mortgage, but upon the subsequent transfer of Weed, Gumaer & Co. The attachment was valid, and the attaching creditor acquired a lien on the logs to the extent above stated, notwithstanding the insolvent proceedings given in evidence. It appears from the record that those proceedings were commenced in January, 1863, but when they were ended, or when Smith was discharged from his debts, does not appear. We cannot presume that judgment bad been entered, and the debtor dis-discharged, at the time the writ of attachment issued and was levied; and consequently we must assume that the proceedings in insolvency were then' still pending. The mere pendency of a petition in insolvency and for a discharge does not debar the creditors of the insolvent debtor from pursuing the ordinary remedies against him for the collection of their debts. No assignment of the estate of the debtor is directed until the petition is beard, and not then unless it satisfactorily appears to the court or judge that be is entitled to be discharged according to the terms of the act. R. S., ch. 161, sec. 17. The assignment is of such property as the debtor has at the time it is executed. Sec. 18. Until the assignment is made, the debtor remains in the full possession and enjoyment of his estate, and may dispose of the same at pleasure, subject only to his accounting for and paving over the proceeds at his examination ; which if be does not do, be will not be entitled to be discharged. The terms of the statute are very clear. See the sections above cited, and sections 15, 16 and 24. It would be most unreasonable to suppose, whilst the debtor thus retains the possession and control of his property, that the legislature intended that his creditors should be deprived of every remedy against him for their seccurity or protection. A dishonest debtor might then resort to the proceeding for the very purpose of defrauding his creditors. There is nothing in the stat [423] ute to authorize any such conclusion, and we must bold that the writ of attachment was well issued and levied on such proportion of the logs in question as were cut after the execution and delivery of the mortgage, not including those cut on the land of Weed, Gumaer & Co. The utmost effect that can be given to insolvent proceedings in cases of this nature is, that they may afford ground for other creditors, and perhaps for the debtor, with a view, if possible, to have the attached property transferred to the assignee, to apply before discharge for a stay of proceedings, and afterwards to have the property transferred to the assignee, when appointed. The pendency of such proceedings is certainly no bar to an attachment. By the Court.- — Judgment reversed, and a new trial awarded.