62 Wis. 92 | Wis. | 1885
The statute requiring the assignor to make and file, in the office of the clerk, “ a correct inventory of his assets, and a list of his creditors,” within ten days after the execution of the assignment, is peremptory, and a failure to so make and file avoids the assignment. Sec. 1697, R. S.; Haben v. Harshaw, 59 Wis. 410. But the same section and
The fact that such list is not conclusive upon the assignee nor any creditor, but may be contested by either, as provided in sec. 1699, pretty clearly shows that such assignment is not necessarily invalidated by reason of an improper claim being innocently and by mistake included in such list. This is strengthened by the construction put upon the word “such,” as used in the last clause of sec. 1697, by this court in Steinlein v. Halstead, 52 Wis. 291, and also by what is said in Mather v. McMillan, supra. So the obvious purpose of requiring the assignor to file “ a correct inventory of his assets” was not only to give to the assignee and creditors the requisite information and description of the property assigned, but also to prevent the assignor from defrauding his creditors by concealing or secretly withholding from the assignee any portion of his property. Ibid. In other
The traverse put in issue the alleged fraudulent intent of the defendants in making the transfer, and upon that issue the plaintiff had the burden of proving, not merely the belief, or the good reason for the belief, of the existence of such fraudulent intent, but the existence, in fact, of such intent to defraud in making such transfer. Davidson v. Hackett, 49 Wis. 186. Without going into, details, it is enough to say that we find no evidence of any intentional omission of any property from the inventory, nor any evidence that in making the assignment the defendants intended to defraud any of their creditors. Especially must we so hold, in view of the recent amendments to the statutes enlarging the rights and powers of assignees, and prohibit- ■ ing the debtor from giving preferences in such cases. While the law authorized a failing debtor to prefer some of his creditors at the expense of others, either by way of sale, special transfer, or a general assignment for the benefit of creditors, and left the assignee as the mere representative of the debtor, without giving him the right to acquire such property as the debtor had fraudulently .conveyed or transferred prior to the assignment, as was held in Estabrook v. Messersmith, 18 Wis. 545, and Hawks v. Pritzlaff, 51 Wis. 160, there was much more reason for holding a stringent rule of construction than there is since the recent amendments. Now the assignee represents the rights and interests of the creditors of the assignor making the assignment, as-against all transfers and conveyances which would be held
Thus, under the law as it now stands, an assignee for the benefit of creditors stands in very much the same attitude and is possessed of quite similar powers to, an assignee in bankruptcy under the act of Congress of 1867. By these two recent enactments, the legislature have manifested the purpose of upholding general assignments so made for the benefit of all the creditors of the assignor, and to prevent all indirect methods of obtaining any preference through the active agency of the debtor at any time during the sixty days immediately preceding the assignment, and to enable the assignee, as the representative of such creditors, to avoid such illegal transfers, and to recover back for their benefit the property so fraudulently disposed of by the assignor.
The transfers of the safe to the father-in-law, and other
Thus it appears that instead of the assignment being made with the intent to defraud creditors, it was made by repentant debtors to obviate the consummation of their own frauds as against their own creditors, and. to secure an equal distribution of all their property, and such as they had’ fraudulently transferred, among all their creditors, including the plaintiff. Such an assignment, to secure such equal distribution among all their creditors, was certainly fair, equitable, and beneficent in its purpose, and its element of equality would seem to preclude all possibility of its being made with the intent to defraud any of such creditors.
The question presented, therefore, is. whether the property assigned, and such as had been so fraudulently transferred prior to the assignment, shall be thus equally distributed among all the creditors, including the plaintiff, or the plaintiff
The inventory filed describes parts of two lots in a village as the homestead of the defendant R. S. Smith, and claims the same as exempt. Such homestead, of course, is specifically exempted by the statute, and there is no imperative obligation upon the debtor to make any selection of it. Secs. 2083, 2984, R. S. Besides, as it could not be conveyed without the signature of the wife, it certainly could not be assigned by the husband alone, for the benefit of his creditors. Sec. 2203, R. S. There seems to be no other feature of the exemption clause in the assignment, not fully covered by the opinion in Bates v. Simmons, ante, p. 69, filed herewith. See, also, First Nat. Bank v. Hackett, 61 Wis. 335.
By the Court.— The order of the circuit court is affirmed.