Farwell v. Gundry

52 Wis. 268 | Wis. | 1881

Lyon, J.

Tbe case is witbin very narrow limits. It involves but a single question, tbe solution of which is not difficult. Save the omission from the inventory of the parcel of land mentioned in the findings of fact, the proceedings in the execution of. the assignment are in strict compliance with the requirements of the statute in every particular. The proofs fully sustain the finding that the omission of that tract was by mistake. It was, however, a mistake of law, the parties to the assignment supposing the law exempted a homestead of forty acres to the assignor, when it only exempted one-fourth of an acre. The precise question is, therefore, Is the provision of section 1697, to the effect, that no mistake in the inventory of assets or list of creditors shall invalidate the assignment,' sufficiently broad to include a mistake of law? We are clearly of the opinion that this question should be answered in the affirmative. The title to the assigned property passed to the assignee by the execution of the assignment, without inventory or list, as at common law. Section 1697 creates conditions subsequent, which did not exist before the section was enacted, to wit, the filing of the inventory and list within a specified time. A failure to file either of these may defeat the title of the assignee. The fact that a breach of either of these conditions may work a forfeiture of title, and thus defeat the trusts created by the assignment, calls for a reasonably liberal construction of the saving clause in the statute in favor of the validity of the assignment.

The language of that clause is very general and comprehensive: “Mo mistake therein shall invalidate such assignment or affect the right of any creditor.” To confine its operation to mere mistakes of fact, when the statute expresses no such limitation, would be to apply a rule of construction directly contrary to that above stated. In order to save the title of the-assignee, and thus preserve the trusts created by the assignment, we do not hesitate to hold that the statute saves the assignment whether the mistake be of law or of fact. The principles upon which section 1697 must be construed are stated and fully discussed by Mr. Justice Orton in Steinlein v. Halstead, decided herewith, and are in harmony with the views above expressed. Something was said in the argument of the present case concerning the effect upon the assignee’s bond of the omission to schedule all of the property of the assignor in the first instance. It is sufficient on this subject to say that by the assignment the assignor conveyed to the as-signee all his property not exempt by law from seizure for his debts, and that the nominal value of such property was ascertained in the manner, and the bond executed in the form and for the amount, required by law. If, for any reason, t]he bond should become insufficient, the circuit court has ample authority to require further security from the assignee.

By the Gourt.— The judgment of the circuit court is affirmed.