119 N.W. 635 | N.D. | 1909
This is an action to determine adverse claims to the of section 2 in township 132 N. range 57 W., in Sargent county, N. D. Plaintiff had judgment in the district court, and the defendant, Hartzell, appeals, and asks a trial de novo.
Many questions are raised which depend largely on the determination of the main question. The facts are as follows: One Field, whom we infer to be a resident of Wisconsin, held a first mortgage on the land in question. One F. T. Day, also a resident of Wisconsin, .held a second- mortgage thereon. Both these mortgages were duly recorded. Day became the owner of the fee to said premises on the 23rd day of July, 1890, through a sheriff’s deed conveying the same to him under a foreclosure of his second mortgage. June 3, 1893, Day made an assignment for the benefit of creditors to one Momsen, under the provisions of chapter 80 of the Revised Statutes of Wisconsin of 1898, and the acts amendatory thereof and supplemental thereto. Momsen on the same day consented to act as such assignee, and a certified copy of the original deed of assignment was filed and entered in the office of the clerk of the circuit
“Chapter LXXX.- — Of Voluntary Assignments.
“Supervision of. Sec. 1693. The -circuit court or the judge thereof -in vacation, shall have supervision of the proceedings in all voluntary assignments made under the provisions of this chapter, and may make all necessary orders for -the execution of the same.
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“Inventory of Assignor’s Assets. Sec. 1697. (As amended by chapter 251, Laws 1885; chapter 317, Laws 1887.) Within twenty days after the execution of the assignment, the assignor shall also make and'file in the office of said clerk a correct inventory of his assets and a list of his creditors, stating the place of residence of each such 'creditor and the amount due to each, which inventory and list shall be verified by his oath, and have affixed a certificate of the -assignee that the same is correct, according to his best knowledge and belief; but no mistake therein shall invalidate such assignment or affect the right of any creditor.
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“Removal of Assignee. Sec. 1702. (As amended by section 1, c. 548, Laws 1887.) The circuit judge may, upon notice and after a hearing, remove -any assignee who is shown to be incompetent, or to have become disqualified, or to have wasted or misapplied any of the trust -estate, and shall also remove any such assignee upon the application of a majority of the creditors of such assignor, who shall also represent a majority in value of the debts allowed against said estate, and compel by order a settlement of his account and surrender of the estate to his successor, -and shall appoint -the person named in such petition, or some suitable person -as his successor, -who shall qualify in the same manner provided by law for the assighee appointed by the instrument of assignment; and in place of -any assignee who shall die or be removed may appoint another, who shall give the bond and be subject to like duties and responsibilities as to the estate remaining undisposed of, and proceedings remaining to be taken, as if appointed by the instrument of assignment.
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“Who may be Discharged. Sec. 1702d. (Section 1,-c. 385, Laws 1889.) Any person who shall have made a voluntary assignment for the benefit of his creditors under or in pursuance of the laws*226 of this state, may ibe discharged from his debts as a part of the proceedings under such assignment upon .compliance with the provisions of this act.”
In addition to this such statute contains other provisions relating to the discharge of the assignor.
The principal question in this case is, Did the assignment referred to transfer the title of Day to the land in question? The authorities as to the effect of voluntary assignments for the benefit of creditors upon the title of real estate situated outside the jurisdiction in which the assignor resides hnd makes his assgnment may be said to be not altogether harmonious; many of them holding that such an assignment conveys the real estate wherever situated, while others qualify this in favor of creditors who are not residents of the state where,the assignor resides, and where the assignment is made. As to the effect of involuntary assignments, or what may be termed “state bankruptcy or insolvency laws,” on real property in other jurisdictions, there is practically no conflict of authorities. It, therefore becomes necessary to decide whether the assignment of Day, as controlled by the statutes of Wisconsin, is a voluntary or an involuntary assignment, and what its effect was upon the land involved .in this action. The general principle seems to be that where the .assignment -is made in accordance with the provisions of a statute which is, in effect, a bankruptcy or insolvency .statute, and under the terms of which the assignor may be discharged from his indebtedness, although the act of assignment itself may have •been, voluntary on the part of the assignor, yet in the contemplation of the law it is an involuntary assignment, and the proceeding is one in bankruptcy or insolvency. This rule rests upon the well-established principles that the title and disposition of real property are exclusively subject to the laws of the state where it is situated, and that such state alone can prescribe the mode by which the title can pass; that the laws of one state will not be permitted to control the trust, the action of the trustee, or the disposition of the trust property in another state, the subject of the trust being real property —as well as the general principle that the statutes of a state can operate only within the state which enacts them. W'e cannot attempt to cite all the authorities supporting this but give a few only. See Security Trust Co. v. Dodd, 173 U. S. 624, 19 Sup. Ct. 545, 43 L. Ed. 835; Townend v. Coxe, 151 Ill. 62, 37 N. E. 689; Rhawn v. Pearce, 110 Ill. 350, 51 Am. Rep. 691;
As to the construction to 'be placed upon the statute of Wisconsin, we are not left in doubt, because, aside from its having been construed by the courts of other states, the Supreme Court of Wisconsin has settled its meaning and effect in this particular, and we shall not take it upon ourselves to over-rule the construction which that court places upon a law of its own state.
We may say, in passing, that respondent contends (not very strenuously, however) that, irrespective of the fact that the deed from Momsen to Field was executed by Momsen as assignee, the fact that he also executed it in the name of Day, as his attorney in fact, conveyed title. There is no merit in this contention. Our quotations from the deed of assignment indicate with perfect clearness that Momsen was constituted Day’s attorney in fact to empower him to- execute deeds of conveyance simply and only for the purpose of carrying into effect the terms of the deed of assignment, and that Momsen’s authority and power as attorney in fact for Day are limited to carrying out the provisions of the assignment, and that they do not extend to the execution as attorney for Day of deeds of property not included within the assignment. Hence, if the land in controversy was not conveyed by the assignment, Mom-sen was not authorized to execute a deed thereto by force of the' power contained in the instrument. If authorities are needed to sustain this point, which we think they are not, Osborne v. Adams, 18 Pick. (Mass.) 245, is in point. A statutory assignment had been made in Connecticut, for the benefit of the assignor’s creditors. On the same day, and in connection with the assignment, the assignor, Powell, by deed executed in Connecticut, conveyed to the same party who was made the assignee in the deed of assignment land situated in Massachusetts. The latter deed referred to the general assignment as to the purposes of the conveyance. The Massachusetts court held the statutory deed of assignment to be void as to lands in Massachusetts, and that it could neither pass title or aid one otherwise defective, and that the last-named deed was ancillary to the assignment proceedings, and that it could no more take notice of a trust created under a foreign government than it could of a will not proven or recorded in Massachusetts.
Many cases make a broad distinction between the effect of such an assignment upon real and personal property, but no such' question is in the case at bar. It is sufficient to say that all such distinctions are exercised in favor of the assignee’s title to personal property. The Supreme Court, in McClure v. Campbell, 71 Wis. 350, 37 N. W. 343, 5 Am. St. Rep. 220, construed a similar insolvency law of the state of Minnesota and its application to property in Wisconsin. It is argued that the Minnesota law differs essentially from the Wisconsin law. This is true in regard to many of its details, but it is not true as to the principle relied upon; the point being that both laws provide for a discharge of the debts of the insolvent. In the McClure case, in construing the Minnesota law, it was held that, the property being administered by and under the direction of the court of Minnesota, the assignment had no extraterritorial effect, and did not defeat' an attachment levied upon property in the state of Wisconsin by a creditor of the assignor, that such assignment made in Minnesota under the insolvent law of the latter state did not affect the property of the assignor situate in Wisconsin, even though, in the sense that the debtor was not compelled to make the assignment, it was voluntary. The Wisconsin court m that case, referring .to the construction given the Minnesota statute by the Supreme Court of Minnesota, says that they regard it as binding upon the Wisconsin court. In Townsend v. Coxe, supra, the Supreme Court of Illinois holds the Wisconsin law to be a bank
It is claimed by the respondent that the appellant’s title, being derived from a quitclaim deed, is insufficient as the ground for maintaining an action to quiet title, and consequently is not adequate to support a counterclaim. There is no merit in this contention. The authorities cited are not in point, and, if they were, are contrary to the great weight of authority. The deed to the respondent grants, sells, remises, and releases unto the defendant; and, even if, according to the contention of the appellant, it is only a quitclaim deed, it as effectually passed all title as one containing full covenants. See 1 Am. & Eng. Enc. Law, 860, and cases cited.
One other point remains to be considered. Prior to the trial in the district court the parties entered into a stipulation of the facts, on which it was agreed the case should be submitted. This stipulation was suggested by the respondent, and it was consummated with great care by correspondence covering a period of several weeks. It was in writing, and signed by the respective parties. It begins in the following language: “It is stipulated and agreed by and between the plaintiff and the defendant, W. J. Hartzell, in the action above entitled, that the following facts shall constitute all of the facts in the action above entitled, and shall be evidence of the same, and may be read as evidence at the trial of said cause, subject to the stipulation herein contained relative to objections.” After stating the facts agreed upon, the concluding paragraph is as follows: “That the facts herein stipulated shall be considered proven, and each fact so stipulated will be subject to all legal objections on the trial, except the manner of bringing said facts before the court, as the respective parties of this cause may deem advisable to interpose, and either party may make such objections and have- the same incorporated into .the record at the time of the trial, or such objections may be considered made and entered for all purposes without being formally noted in the record.” This stipulation was dated January 6, 1906, but was not consummated until the 16th of that month. We infer that the trial occurred' early in March, 1906.
In the case of Welsh v. Noyes, supra, the trial court had stricken out a material portion of what was, in effect, a stipulation of facts, and the appellate court held that while the trial court may relieve the party from such stipulation by pursuing the right method, that
The judgment of the district court is reversed, and it is directed to enter judgment quieting the title to the land described in the appellant, as against all claims of the respondent.