Cunningham v. Brictson

77 N.W. 740, 101 Wis. 378, 1898 Wisc. LEXIS 335

• Court: Wisconsin Supreme Court
• Decided: December 16, 1898
• Status: Published

Opinion

BardeeN, J.

The points pressed for our consideration may be stated as follows: (1) That the findings are not supported by the evidence; (2) that the chattel mortgage covered exempt property, and was void without the wife’s signature; (3) that the transaction was a voluntary assignment, and was void as containing preferences, and was not •executed in accordance with statutory requirements.

1. From an inspection of the whole record., we are of opinion that the findings of the trial court cannot be disturbed. There is certainly testimony to support every conclusion reached. • This court has very many times announced the rule that it would not disturb the findings of the court below unless it clearly appeared that they were contrary to the weight of the evidence. Clausen v. Hale, 96 Wis. 100; Momsen v. Plankinton, 96 Wis. 166; Racine Water Co. v. Racine, 97 Wis. 93.

2. It is admitted that the chattel mortgage in question covered Rodby’s .entire stock of merchandise, and that it Avas not signed by his wife. Hence it is urged that the mortgage is void and may be attacked by his creditors. The statute in existence at the time this mortgage was given is now sec. 2313, Stats. 1898. That portion Avhich relates to this conveyance reads as follows: “Nor shall a chattel mortgage of personal property which is by law exempt from seizure and sale upon execution be valid unless the same be signed by the wife of the person making such chattel mortgage, if he be a married man and his wife at the time be a member of his family, and unless such signature of such Avife be witnessed by tAvo Avitnesses.” By tracing the development of the legislation which has become crystallized into the present statute, we are able to clearly determine its object and purpose. Sec. 2313 as found in the Revised Statutes of 1818 contained no provision requiring the Avife’s signature to a chattel mortgage. Oh. 218, Laws of 1885, added a proviso that a chattel mortgage upon household furniture should not be valid unless 'signed by the wife and her signature was duly witnessed. Ch. 268, Laws of 1881, amended the laAV of 1885, and brought the statute into its present form. This statute deals with property in which the creditors of the party have no interest. It was designed for the protection of the debtor’s family. This limitation of the husband’s right is in derogation of his common-law right to dispose of property, and is not to be construed beyond the letter of the law. Singer Mfg. Co. v. Callaton, 90 Mich. 639. This disability on the part of the husband does not inure to the benefit of his creditors. They have no right to attack the conveyance because it covered property alleged to be exempt. The supreme court of Michigan, construing a similar statute, holds that such a mortgage is not wholly void, but only to the extent of the exempt property. Watson v. Mead, 98 Mich. 331.

This discussion has been pursued upon the theory that the-mortgage did in fact cover exempt property, but the court has found that it did not. At the time the mortgage was-given, Rodby was a merchant or trader, and owned a safe,, show cases, and other personal property mentioned in the testimony, not included in the mortgage, and which he claimed as his exemptions, under subd. 8, sec. 2982, Stats. 1898, as being “tools and implements ” used and kept for the purpose of carrying on his trade or business. The court found that these exemptions were properly chosen, and were permissible, under the statute; that is, that he might select “tools and implements ” used in his business in lieu of “stock in trade.” Argument is made substantially to the effect that,, under this statute, “ tools and implements ” must be construed as being the exemptions allowed to the “ mechanic or miner ” mentioned therein, and that “ merchants and traders ” are only entitled to exemptions of “ stock in trade.” This view of the statute is altogether too narrow and constricted. This court has said over and over again that exemption laws must be liberally construed; that, in following-out the constitutional mandate, the legislature must provide-for the enactment of laws giving the debtor a reasonable-amount of property to be held free from the claims of creditors ; that such laws are founded on the soundest considerations of public policy, and are designed to stimulate individual freedom and manly citizenship. Maxwell v. Reed, 7 Wis. 582; Wicker v. Comstock, 52 Wis. 315; Comstock v. Bechtel, 63 Wig. 656. The right to choose the exemption is a personal privilege of the debtor. Bong v. Parmentier, 87 Wis. 129. The law says that the “ tools and implements and stock in trade ” belonging to classes named shall be exempt. Under the rule of liberal construction, the words “ tools and implements ” should be construed to cover such articles as are usually used in, and are reasonably necessary to carry on, the trade or business of the claimant, not exceeding the value of $200, actually kept for that purpose. The limitation of value renders it unimportant to the creditor whether the exemption be chosen from the one or the other of these classes. A restriction limiting the exemption in the one case to the mechanic or miner, and in the other to the merchant or trader, is out of all harmony with the true spirit of the law, ancl cannot be sanctioned.

3. There is no substantial ground for claiming that the transaction in question amounts to a voluntary assignment. To so hold we would have to overturn the judge’s findings, and inject into the case elements that do not exist, as we view the testimony. The agreement of Brictson to pay the several notes mentioned was an original undertaking, founded upon a good and sufficient consideration. The execution and delivery of the mortgage, upon the condition that the mortgagee should pay these notes, removes the case from the ban of the statute. Dyer v. Gibson, 16 Wis. 557. There was nothing in the case tending to show that the mortgagee obligated himself to apply the proceeds of the mortgage to the payment of any of .the debtor’s creditors. The evidence does show, however, that he made an unqualified promise to pay these notes, regardless of the fact of whether there would be sufficient property covered by the mortgage to pay all his claims. Lacking, as it does, the trust obligation necessary to create an assignment, there was no error in upholding the mortgage.

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