78 Wis. 615 | Wis. | 1891
In the above-entitled actions • the assignee has appealed from an order made in each of said cases upon
The question is this: Can a man who holds a promissory note against the maker and an indorser thereon, after the same becomes due, and after the indorser has been duly charged with payment of the note, and when, before any payment has been made thereon by either maker or in-dorser, the maker and indorser each make a voluntary assignment for the benefit of their creditors, prove his claim against the estate of the maker and of the indorser severally for the whole amount due on such note ? The question is so well settled by the authorities that it is not controverted by the learned counsel for the appellant in this case. That the holder of the note is the creditor of each severally for the whole amount due on the note, is uncontroverted, all courts holding that he may bring separate actions upon the note against the maker and indorsers for the whole amount due, and have several judgments for that amount (Cowles v. MoVickar, 3 Wis. 725;, Charles v. Denis, 42 Wis. 56); and that he may pursue his remedy upon such judgments until his debt is fully satisfied, and that if he can obtain satisfaction of such debt by enforcing the judgment against the indorsers alone he may do so without any hindrance. The indorser himself has no right, in law or equity, to compel his creditor to enforce payment for any part of the judgment out of the assets of the maker before enforcing payment from him. I do not understand the learned counsel
The learned counsel says: “We all agree that if the maker pays any part of the sum due on the note before the assignments are made, or even before the parties prove, their claims against the several estates, the holder can only
As said above, the learned counsel for the appellant does not claim that the indorser can enforce the rule contended for by him, for his own benefit, as that would be in direct conflict with the rule, which is admitted by all parties, that the holder of the note may at his option enforce his remedy against both or either debtor for the whole amount of his claim until he obtains full satisfaction therefor. See Story, Eq. Jur. § 640, and cases cited. The claim is proved in favor of the creditors of the indorser, and the counsel claims to invoke, in favor of his other creditors, the rule which
In the case at bar, therefore, the other creditors of Meyer have no larger equities against the creditors of Meyer and the furniture company than Meyer himself has or would have if he were prosecuting this appeal.
It is admitted that if the debtors, Meyer and the furniture company, were not insolvent, or if they had not made assignments, the common creditor might prosecute his claim against either or both to judgment and satisfaction, and that a court of equity would not interfere to prevent such a xesult. Certainly it would not interfere to prevent a satisfaction of the entire claim if either or both parties had sufficient assets to satisfy the same. Why, then, should a court of equity interfere to prevent the satisfaction of the common creditor’s debt out of the estates of his debtors in the hands of their respective assignees, if the dividends Upon the whole amount of such claim proved against each estate will produce such satisfaction? or why is his debt against the indorser any less sacred thaij the claim against the maker? It may have been, and in the case at bar it is probable, that the common creditor relied fully as much upon the credit of the indorser as he did upon that of the furniture company when discounting the notes which constitute his claim. Why, then, should a court of equity in
But the learned counsel for the appellant asks why a party should have a dividend upon money he has in his own pocket. The answer which is given to this, in most of the cases, is that the sums upon which the parties are entitled to dividends are the sums due them from the estate at the time of their making the proofs of their claims. It cannot be said that the money he afterwards receives from the estate of the maker is money paid to him on his claim against the indorser, so as to affect his right to a dividend upon the full amount due from the indorser at the time he proved his claim against him, so long as a dividend upon his full claim against the estate of the indorser, added to the dividend from the estate of the maker, will not more than pay his debt in full. When the indorser became insolvent, the claim of the holder of the note against him for the whole amount due thereon was just as legal and equitable as that of the sole creditor of such indorser; and it would seem inequitable that he should not be able to share equally in that estate upon the basis of his entire claim, because he has sought to recover a part of the same from the maker. So long as all the dividends in both estates do not more than pay his debt, to apply the money so received from the estate of the maker would work a benefit to the other creditors of the indorser and an injury to the common creditor.
It would seem to be imposing too great a task upon us
The rule adopted by the learned circuit judge seems to be in exact accord with the rule in cases of bankruptcy in England, in all cases in which the creditor has only the personal promise of his several debtors for his security. Arch-bold, an eminent law writer, says: “ As at law, the holder of a bill may, upon due notice of dishonor, sue concurrently and recover judgment for the full amount, and levy execution from every party to the bill till he have recovered the sum due on the bill. So, in bankruptcy, he may prove against every party, if they are all bankrupts, or prove against those of them who are bankrupts, and bring actions against the others, provided that, on the whole, he do not receive more than twenty shillings on the pound upon the whole amount of the bill; but if any part of the bill has been received by the holder before he has actually proved it upon the estate of a party, he can prove only for the residue, and where a bill has been proved or claimed on another’s estate, and a dividend reserved on such proof or claim, though not paid, it must be deducted.” 1 Archb. Bankr. (by Griffith & Holmes), p. 608, ch. 10, sec. 4.
The dividends spoken of in the last part of the quotation are evidently dividends which have been declared and reserved on the other estate before the proofs are made by the holder against the other bankrupt estate. In such case, the dividend having been declared and reserved for the benefit of the holder, it is equivalent to a part payment of the original debt, and the owner of the debt cannot con
By the Oowrt.— The orders appealed from are affirmed in each case, and the cases are remanded for further proceedings.