84 Wis. 122 | Wis. | 1893
It will be observed from the foregoing statement that the bond and mortgage were given for future advances to be paid by the mortgagee and garnishee, Bussell, to the debtor and mortgagor, F. W. Smith, for the purposes therein mentioned. Such a mortgage is valid, even as against attaching or garnishing creditors of the mortgagor, to the extent that the advances are actually made or the liability actually incurred, but void, as to such attaching or garnishing creditors, in so far as the advances have not been made nor any liability incurred. Carter v. Rewey, 62 Wis. 556; First Nat. Bank v. Damm, 63 Wis. 256; Hobart v. Jouvett, 6 Cush. 105; Barnard v. Moore, 8 Allen, 273; Sullivan v. Lamb, 110 Mass. 167; Divver v. McLaughlin, 2 Wend. 596, 20 Am. Dec. 655, and note; Robinson v. Williams, 22 N. Y. 380; Brown v. Kiefer, 71 N. Y. 610; Davenport v. McChesney, 86 N. Y. 242; Preble v. Conger, 66 Ill. 370; In re O’Byrne's Estate, L. R. Ir. 15 Ch. Div. 373.
Here the garnishee papers were served March 12,1888,— only a little over a month after the mortgage was given. The statute made the garnishee liable to the plaintiffs to the amount of the property, moneys, credits, and effects in his possession or under his control, belonging to the mortgagor, or in which he was then interested, to the extent of his right or interest therein, and of all debts due or to become due to him, except such as might by law be exempt from execution. Sec. 2768, E. S. The liability or nonlia-bility of the garnishee became fixed at the time of such service, and depends upon whether, at that time, the mortgagor had any right to, or interest in, such property,
If the bond and mortgage could be properly construed as claimed, to the effect that Russell was thereby bound to convert the goods into money and apply the same in payment of the debts of the mortgagor, then the transaction would have been, in effect, an assignment to him in trust for the benefit of creditors, and hence would come directly within the condemnation of the statute, as frequently declared by this court. Winner v. Hoyt, 66 Wis. 227; Maxwell v. Simonton, 81 Wis. 635, and cases there cited. But we do not think the transaction will properly bear such construction. On the contrary, by an express provision of the bond, Russett refused to bind himself in any manner, or to agree to advance sufficient money to pay such indebtedness. Besides, whatever money he thereby agreed to advance was to be advanced, to the debtor and mortgagor personally.
For the reasons given, the judgment of the county court,, is affirmed.
By the Court.— Judgment affirmed.