Standard Paper Co. v. Krauthoefer

PiNkey, J. The statute (R. S. 1818, sec. 1694) declares that all voluntary assignments for tbe benefit of or in trust for creditors shall be void “ unless the assignee shall be a resident of the state, and shall, before taking possession of the property assigned, and before taking upon himself any trust conferred upon him by the instrument of assignment, 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 assignment shall reside, not being a creditor of sueh assignor, a bond duly executed to the clerk of the circuit court of the county, by his name of office, as obligee, in a 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 assignors, with two or more sufficient sureties, freeholders of this state, who shall each testify 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; and the bond shall be conditioned,” etc.; and it is required by sec. 1695 to be filed, with a copy of the assignment, in the office of the clerk of the circuit court by the officer taking the same. Sec. 1696 provides, in substance, that the assignees’ consent to take upon themselves-the trusts specified in the assignment shall be evidenced by ■written indorsement on the copy of the assignment to be filed with the clerk of the circuit court, and that they shall certify thereon that it is a true copy of the original assignment, and the officer taking the assignment and bond is required to indorse on such copy his certificate to certain facts-therein stated. Many cases have arisen in which there has been some real or alleged failure to comply with the provisions of the sections above referred to, and, without citation or comment in [170] ‘detail, it is sufficient to say that it is settled that the filing •of the bond and the copy of the assignment, with the proper indorsements thereon, is a condition to passing the title to the assignee, as against the creditors of the assignor; that .all the requirements of sec. 1696 are mandatory, and that .the certificate required by it must be indorsed or written on the copy of the assignment, or the trust will not be lawfully created. Shakman v. Schlueter, 77 Wis. 403; Grever v. Culver, 84 Wis. 295. Neither sec. 1696 nor any other provision of the statute requires that there shalfibe indorsed on the copy of' the assignment, or on the bond of the assignee, a certificate or statement that the county judge or court commissioner officiating in perfecting the assignment was not .a creditor of the assignor. The statute does not contemplate that any certificate should be made or filed that the officer acting is not'disqualified so to act. The presumption, in the absence of proof of any special objection, is that a public officer exercising judicial functions is qualified to act, and his acts as such are prima facie valid. While it has uniformly been held that all the requirements of the statute in respect to filing the bond and a copy of the assignment with the certificates expressly required are mandatory, we find no warrant in the statute or in any previous decision for holding that a certificate by the county judge or court commissioner that he was not a creditor of the assignor at the time is essential to the validity of the assignment. His ■qualification to act will be presumed, like the fact that he was satisfied that the property of the sureties being within this state was worth in the aggregate the sum specified in the bond, from having received and filed it with the assignment as required by law”. Lindsay v. Guy, 57 Wis. 200. The essential qualifications of sureties, however, must be shown by certificate on the bond of the assignee, and will not be presumed. Auley v. Osterman, 65 Wis. 118. [171] Tbe objection to the "validity of the assignment is not well taken, and the judgment of the circuit court must therefore be reversed. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.