Brahe v. Eldridge

17 Wis. 184 | Wis. | 1863

By the Court,

PAINE, J.

Buckingham, a debtor in an insolvent condition, assigned his property, including some real estate, to Eldridge, in trust for his creditors. The assignee took possession of the personal property, but immediately thereafter, on discovering that the bond which he had given was defective, he redelivered possession of the property, and a new assignment of the same property, and a small amount of personal property in addition, which had been by mistake omitted in the first, was executed, and a new bond given, under which the assignee took possession and claims to hold. These plaintiffs, who claim to be judgment creditors of Buckingham, seek in this suit to have the assignments held void as to them, and to have the property applied in payment of their judgment. The ground principally relied on to sustain the action is, that inasmuch as the assignee did not execute any reconveyance of tbe property to Buckingham after tbe discovery of tbe defect in tbe bond, therefore nothing passed by the second assignment from Buckingham, but the title remained in Mdridge by virtue of the first, which is conceded to have been void as against creditors ; thus, as it is claimed, leaving the property liable to be seized by them and applied in satisfaction of their debts.

But even assuming, with the appellant, that the title passed by the first assignment, and that it did not revest in Buckingham for want of a reconveyance, we still think the trusts declared in the second assignment should take effect upon the title already in Eldridge, such being the clear intention of all the parties, and the second assignment having been perfected and the statute complied with before these plaintiffs or any other creditors had acquired any lien upon the property conveyed. If a reconveyance had been made by Eldridge, then the second assignment would clearly have been good. But the title is left at last in the same position, whether they had assumed, as they did, that they might abandon the first assignment en* tirelv, and make a new one, or whether they had assumed that the title passed by the first, and had reconveyed it to Buckingham, and then back to Eldridge. It having been entirely competent for the parties to accomplish the latter result, notwithstanding the invalidity of the first assignment, there does not 'seem to be anything so essential in the mere formal process of a double reconveyance, which would only get the title back where it started from, that the lack of this proceeding should, compel a court of equity to defeat the trust.

The judgment of the circuit court is affirmed, with costs.