Case v. James

Newman, J. The plaintiffs allege four grounds of error: (1) The court erred in holding that the assignment papers -were valid or sufficient in form and substance under the law. (2) The court erred in holding this assignment valid, for by it preferences were given to creditors. (3) The court erred in taking the case away from the jury and deciding the question of fraudulent intent itself. (4) The court erred in refusing to set aside its judgment and grant a new trial herein. 1. The first ground of error relates to the manner and form in which the justification of the sureties upon the as-signee’s bond was taken. It is claimed by the plaintiffs that it is required that the sureties testify orally to their responsibility before the court commissioner who is to approve the bond. The statute requires a bond “ 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.” R. S. sec. 1694. Each surety is required to “ testify” to his responsibility. What does the word “testify” mean? As defined by Webster’s dictionary, it is “to make a solemn declaration, verbal or written, to establish some fact.” Witnesses testify orally or by written affidavits or depositions. The -word “ testify ” signifies the giving of testimony, whether orally or in writing. These sureties, then, did literally testify before the court commissioner through their affidavits; and, if their affidavits satisfied the officer of their responsibility, the en [323] tire statute, to its utmost provision in this regard, was literally satisfied. The express provision that they were to satisfy the officer “ by their several affidavits ” would seem to indicate quite clearly that they were to testify to the officer through their affidavits. It is not a question of strict or liberal construction, but of what the words mean, “ according to the common and approved usage of the language.’7 2. It is urged that the assignment is void, because “ by it preferences were given to creditors.” This is not intended to say that the assignment itself gave preference to any creditor. It was entirely innocent of any provision having that effect or purpose. But what is meant is that by the action of the assignee in surrendering to Nickell and to Wells, Nellegar & Co. the property included in their mortgages, unlawful preferences were in effect given. But it would seem that, if true, that could not well relate back to the assignment so as to render it void. It is rather an unauthorized action of the assignee under the assignment than a defect in the assignment itself. If these mortgages were in fact invalid as against other creditors of the mortgagors, the assignment did not authorize the assignee to surrender them. That act was wholly apart from the assignment and its provisions and purpose. The assignee represents creditors as well as the assignors. The rights of the parties are to be worked out through him. His action is always subject to the supervision and direction of the circuit court, to which either party may apply for direction in any doubtful or disputed matter. R. S. sec. 1693. Instead of seeking the direction of the court, it is said that the assignee followed the advice of the attorneys of the mortgagee. Perhaps he was wrong in what he did, but that does not impeach the assignment itself. The remedy of the creditor would seem to be under S. & B. Ann. Stats, sec. 1693b. Batten v. Smith, 62 Wis. 92; Lawson v. Stacy, 82 Wis. 303. These mortgages were executed before the assignment. If they were void, it was because they were made with intent to hinder and [324] delay creditors. Blakeslee v. Rossman, 43 Wis. 116; Anderson v. Patterson, 64 Wis. 557; Merchants’ & M. Sav. Bank v. Lovejoy, 84 Wis. 601, 611, 612. The act of the mortgagees in taking possession under such invalid mortgages gives them no valid title. Blakeslee v. Rossman, supra. It would seem that the remedy given by the statute referred to is appropriate and ample. It is claimed, indeed, that this very appropriation of the mortgaged goods was the secret motive and purpose of the assignment. This is not very clearly shown, nor is it a very cogent inference from the testimony. Nor is it shown that the assignee was a party to such collusion, if such existed. But it is not obvious how an .assignment which provides for a pro rata division of all the debtor’s goods among all his creditors impartially, and providing for no delay in administration, can be held void on account of whatever motive may have prompted the making. The words of the instrument govern. It is that disposition of the debt- or’s property which the law prefers and favors. The assignee is bound by the instrument as written. It may hinder some pressing creditor from acquiring a preference through the process of the courts. But that, under such circumstances, cannot be deemed a fraudulent hindering of such creditor; for it makes effectual the purpose of the law, by providing a fair distribution of all the debtor’s property among all his creditors. Since preferences have been forbidden and the assignee has become a trustee for the creditors, the courts look upon voluntary assignments with less of suspicion and more of favor than formerly, when preferences were allowed and the assignee represented only the assignor. Batten v. Smith, 62 Wis. 92. 3. It was not error to take the case from the jury. There was no material question of fact in dispute upon the testimony. 4. There was no error in refusing a new trial. By the Court.— The judgment of the county court of Waukesha county is affirmed.