52 Wis. 175 | Wis. | 1881
It is urged by the learned counsel for the appellants that, under the provisions of sections 1694, 1695 and 1696, R. S., the assignment does not take effect so as to pass the title of the .assigned property to the assignee, as against the creditors of the assignor, until all the provisions of those sections are fully complied with. And he insists .that the consent of the assignee, and the certificate of the officer on the
It must be remembered that the provisions of the statute above referred to were not enacted for the purpose of giving validity to a voluntary assignment for the benefit of creditors. Such an assignment was always valid at common law, and this court has held such assignment valid in repeated decisions. The object of the statute was to make such assignments more beneficial to the creditors. All its provisions are intended to secure to the creditors of the assignor, so far as possible, the benefit of the property assigned, and to prevent its dissipation by an assignee who might be more reckless of the rights of the creditors than the assignor himself. The statute makes void, therefore, all such assignments, as against the creditors of the assignor, unless their rights are protected by an as
We think this construction of the section is wholly unauthorized. Section 4971 is a section defining words and phrases used in the statutes, and that part of subdivision 19 above quoted must be limited to cases where the statute expressly, or by necessary implication, requires “ the written signature of a person.” We do not think such construction must necessarily be given to the section under consideration. It does not say in terms that the consent and certificate shall be signed with the written signature of the assignee and officer, nor do we think that the purposes of the statute necessarily require such written signatures in their proper handwriting. The object and purpose of the statute are as fully accomplished where their signatures are signed by another in their presence, and with their consent, as when signed in their own proper handwriting. Unless section 1696 be construed to require the written signatures of the assignee and officer within the meaning of subdivision 19, sec. 4971, and prohibit any other signature than in the proper handwriting of the assignee and officer, then a signature made with their assent and in their presence is sufficient. Such a signature is for all purposes deemed their proper signature.
In Hew York, where the statute provides that a will must be “subscribed by the testator,” etc., it is held that where another person, in the presence and at the request of the tes
Under our statute on the subject of evidence, it would not be necessary to make proof of the authority to execute the writing, as the law provides that it shall be deemed properly executed unless the execution be denied under oath; so that in this state there is no inconvenience as to proof which should induce the courts to hold that the execution should be in the handwriting of the person who executes the same. We see no reason for holding that the consent or certificate required to be indorsed upon the copy of the assignment filed with the clerk of the court, should be void unless signed in the proper handwriting of the assignee and officer. The object of the indorsement being simply to furnish notice to the creditors that an assignment has been made of the contents thereof, and that the assignee has accepted the trust, such object is as effect-
In the later case of Williams v. Mitchell, 49 Wis., 284, this court held that the notice required to be given by the supervisors, upon an application to lay out a highway, need not be signed by the supervisors in their own handwriting, but that it will be sufficient if it be made and given by the direction and authority of the supervisors. Justice Lyon, in his.opinion in that case, says: “It will be observed that the statute does not expressly require the notice to be signed by the supervisors. If it did, there would be great force in the objection; but it only requires them to 'make out a notice.’ Of course, this does not mean that one of their number shall actually write it out; yet there is as much reason for holding that'it must be so written, as there is for holding that the supervisors must actually sign. The plain, sensible construction of the statute is, in our opinion, that the notice must be made and given by the direction and authority of the supervisors; and in the present case the notice was so made and given.” This language is in
This construction renders it unnecessary to pass upon any of the other questions discussed upon the argument, except the question as to the exclusion of the evidence offered by the appellants to show that Dana, had, previously to the assignment, gone through bankruptcy, and that he had failed and settled with his creditors. The questions asked, and which were not allowed by the court, were the following: “ Have you, within two or three years, gone through bankruptcy?” “Did you, within two or three years, settle with your creditors in bankruptcy at thirty cents on the dollar? ” We do not see how the fact that Dana had within two or three years gone through bankruptcy, and settled with his creditors in bankruptcy at thirty cents on the dollar, could affect the validity of the assignment made in this case. The assignment being made in all respects in conformity to the statute, and for the equal benefit of all his creditors, if in fact all the property Dana had was passed over to the assignee under such assignment, it could not be fraudulent and void as to such creditors. Certainly the fact that Dana had once failed and settled with his
We find no errors in the record, and the judgment must be affirmed.
By the Court.— The judgment of the circuit court is affirmed.