Van Ingen v. Feldt

Cassoday, J. It is undisputed that Feldt neglected to include in his schedule of assets an interest he had in certain lots in the town site of Finney, and also a claim against one Berndt of between five and six hundred dollars. It is stated in the referee’s report, in effect, that counsel for the plaintiffs, in their argument of the matter before him, abandoned all their objections except those based upon the failure of Feldt to schedule the Berndt claim, and that they frankly admitted that there was no evidence whatever of any fraudulent intent on the part of Feldt in failing to schedule that claim or the Finney lots; that in the early stages of the assignment proceedings in November, 1891, Feldt was examined by the plaintiffs and disclosed the facts mentioned, and that he had been closed up by the sheriff, and was entirely insolvent; that the plaintiffs took no steps to have such omitted property included in Feld'Ss assets; that Feldt’s' claim against Berndt was for moneys loaned from time to time, and that the moneys so loaned by Feldt were not his own, but belonged to the lodge of which he and Berndt were both members; that in January, 1892, Berndt repaid such moneys to Feldt, and he repaid the same to the lodge. It is true that Feldt mingled the lodge money with his own, and did not hand over to Berndt the specific moneys he received from the lodge, but did loan him the equivalent; • that they were actually lodge moneys, and were returned by him to the lodge as soon as Berndt repaid them. [347] Such, being the facts, we are clearly of the opinion that Feldt was entitled to his discharge. Ch. 80a, S. & B. Ann. Stats., as to the discharge of insolvent assignors, is very much the same as ch. 179, R. S. .Under this last chapter, it has, in effect, been held that the mere failure of an insolvent debtor to inventory all of his assets or property will not prevent his discharge. In re Mabbett, 73 Wis. 351. So it has been held, in effect, under ch. 80a, S. & B. Ann. Stats, (ch. 385, Laws of 1889), that the mere fact'that an insolvent debtor had obtained money by means of false and fraudulent representations would not prevent his obtaining such discharge, although such discharge might not, possibly, operate to defeat an action by the creditor from whom the money was so obtained. Hempsted v. Wis. M. & F. Ins. Co. Bank, 78 Wis. 375. Where it appears that such insolvent debter has in good faith made a voluntary assignment for the benefit of his creditors, and has in all respects complied with the statute relating to the same and ■with the statute last cited, then he is. entitled to such discharge. Sec. 1702p., S. & B. Ann. Stats. If the verification to bis application for such discharge as prescribed by statute is true, then it would seem he is entitled to the same. Sec. 1702/. True, the inventory of Feldt’s estate, as originally made, was not an accurate and complete statement of all his property not exempt, but the correction was made in his examination in the assignment proceedings a few weeks afterwards. The omission of the Finney lots appears to have been of trifling significance, and the objection on that ground appears to have been abandoned,- and in other respects the verification appears to have been true. There was no disposing of any part of his property for the subsequent benefit of himself or his family, or in order to defraud any of his creditors, nor any falsely created or acknowledged indebtedness, within the meaning of the statute cited. The case is clearly distinguishable from In re [348] Rankin, 85 Wis. 15. Tbe mere omission from bis inventory of tbe claim be held against Berndt, under tbe circumstances mentioned, was no valid objection to bis discharge. Tbe moneys Feldt received from tbe lodge were so received in trust for tbe lodge. Had be retained tbe moneys until be made tbe assignment, and then inventoried them and paid tbe samó over to bis assignee, and bad -tbe latter mingled tbe same with tbe other funds belonging to tbe estate, yet, under all tbe authorities, there can be no question that tbe lodge might have reclaimed tbe equivalent of tbe moneys so impressed with tbe trust. In re Hallet's Estate, 13 Ch. Div. 696; Hancock v. Smith, 41 Ch. Div. 456; U. S. v. State Bank, 96 U. S. 30; Comm. Bank v. Armstrong, 148 U. S. 50; Cavin v. Gleason, 105 N. Y. 256; Atkinson v. Rochester P. Co. 114 N. Y. 175; Little v. Chadwick, 151 Mass. 109; Appeal of Hopkins, 9 Atl. Rep. 867; Slater v. Oriental Mills, (R. I.) 27 Atl. Rep. 443. There are adjudications going still further. McLeod v. Evans, 66 Wis. 401; Francis v. Evans, 69 Wis. 115; Bowers v. Evans, 71 Wis. 133. Tbe mere fact that Feldt mingled such trust moneys with bis own, and then loaned their equivalent to Berndt, as and for tbe moneys belonging to tbe lodge, did not relieve tbe claim against Berndt from tbe trust thus impressed upon it; and hence that claim did not pass by tbe assignment, but was properly collected by Feldt and paid over to tbe lodge. By the Gourt.— Tbe .order of tbe circuit court is affirmed.