Churchill v. Whipple

Lyon, J\ The statute which must control the determination of this appeal (Laws of 1858, eh. 64, sec. 1) is as follows: “ All voluntary assignments or transfers whatever of any real estate, chattels real, goods or chattels, rights, credits, moneys or effects, hereafter made within this state for the benefit of creditors, or with a view to insolvency, shall be void as against the creditors of the person making the same, unless the assignee or assignees shall be residents of this state, and shall, before taking possession of the property assigned, and before taking upon himself, or themselves, the several trusts conferred upon him or them by the instrument of assignment conveying and assigning such property or appointing such as-signee or assignees, execute and deliver to the county judge or court commissioner of the county in which such assignor, or some one of the assignors, at the time of the execution of such instrument of assignment, shall reside, not being a creditor of such assignor, a bond in such sum, not less than the whole amount of the nominal value of the assets of such assignor, which value shall be ascertained by the oath of one or more witnesses and of the assignor, with two or more sufficient sureties, freeholders of this state, who shall each testify as to his responsibility, and by their several affidavits satisfy the officer taking such bond, that the property of such sureties (being within this state) is worth in the aggregate the sum specified therein.” The balance of the section prescribes the condition of the bond. The case turns upon the question of the validity of the assignment as against creditors of the assignors. If this is valid, the judgment is wrong and must be reversed; if invalid as to such creditors, the judgment should be affirmed. It is not denied that if, in the execution of the assignment, there was a failure to comply with any requirement of the above statute, the assignment is void. There was no affidavit1 of the sureties presented to the court commissioner taking the bond, that they had property in this state worth in the aggregate [615] tiie sum specified in tiie bond. If, therefore, the statute requires that fact to be shown by the several affidavits of the sureties, the assignment is void, and the judgment should not be disturbed. Notwithstanding the very ingenious argument of the learned counsel for the plaintiff in support of the opposite view, it seems very clear to our minds that the statute requires such fact to be shown by the affidavits of the sureties, and that in no other way can it be made to appear that they have the requisite property in this state. The plain meaning of the statute is, that the assignment shall be void unless the sureties shall satisfy the officer taking the bond that they have the requisite amount of property in this state, and that this can only be done by the affidavits of the sureties themselves. "Without such affidavits the officer cannot be satisfied of the fact so as to give validity to the assignment. To hold otherwise would, it seems to us, be doing violence to the plain language of the statute, as well as to the manifest intention of the legislature. The statute was enacted for the protection of the creditors of persons in failing circumstances who might see fit to make a voluntary assignment of their property for the benefit of their creditors. Its principal object and purpose is to secure the proper appropriation of the debtor’s property towards the payment of his debts. Hence, the legislature carefully provided that the assignee who takes the property and its proceeds shall give ample security for the performance of his trust, and to that end special precautions were prescribed to prevent the acceptance of irresponsible sureties. The affidavits of the sureties furnish the best evidence of the location of their property, if not of its value, and, if willfully false, perjury may be assigned upon them. Such affidavits are valuable guaranties to the creditor of the sufficiency of the sureties, and it accords with the policy and purpose of the statute to require them to be made as conditions precedent to the validity of the assignment. In view of these considerations, we [616] should he strongly inclined to construe the statute in the same way, even though its language was doubtful or ambiguous on the subject. For, in so far as the statute seeks to enforce the proper application of the trust funds in the hands of the as-signee, it is remedial, and should be liberally construed. The foregoing views are not in conflict with the decision of this court in Hutchinson v. Brown, 33 Wis, 465, although the learned counsel for the plaintiff relied greatly upon that case to sustain this assignment. There the assignment was attacked because the affidavits failed to state that the property of the sureties was not exempt from seizure on execution, but the assignment was upheld on the express ground that the statute does not require that fact to appear in such affidavits, and hence, that a proper justification in that respect should be presumed. By the Oowt. — The judgment of the circuit courtis affirmed.