F. Dohmen Co. v. Vogel

Wisconsin Supreme Court

F. Dohmen Co. v. Vogel

72 N.W. 380, 97 Wis. 121, 1897 Wisc. LEXIS 27

DecidedSeptember 28, 1897

StatusPublished

This text of 72 N.W. 380 (F. Dohmen Co. v. Vogel) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

F. Dohmen Co. v. Vogel, 72 N.W. 380, 97 Wis. 121, 1897 Wisc. LEXIS 27 (Wis. 1897).

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Opinion

Marshall, J.

In regal’d to the subject of this appeal, we repeat what was in effect said in Jameson v. Maxcy, 91 Wis. 563, which turned on a similar question: “ The principles of law here involved have been so often seated and applied, and reduced to such degree of certainty by frequent adjudica-, >tions of this court, that no serious difficulty can exist in any [123]*123case involving such principles, in arriving at a right conclusion.” It is essential to a voluntary assignment for the benefit of creditors that there be a trust, a trustee, creditors, and cestui qué trust who can compel an enforcement of the trust; hence there must be a transfer by a debtor of the title to or control of all or some part of his property to another in trust, to pay a part or all of his debts, and return the proceeds, if any, to such debtor. Jameson v. Maxcy, supra, and cases cited. So, whether an alleged assignment for the benefit of creditors be such in fact must be determined by testing it by the foregoing rule, and unless by such test each and all the essential elements mentioned are found present, the decision must be against the existence of such assignment.

To satisfy the foregoing in this case, the appellant contends that Baumbach was a creditor of Esau and that the mortgage to Vogel was to all intents and purposes for the benefit of the former as well as the latter. But the fact appears, uncontroverted, that the whole indebtedness of Esau to the estate of George Siever, for which Baumbach and Vogel were jointly liable as Esau’s bondsmen, was assumed and paid by the latter. No part of the sum paid was refunded to Vogel by Baumbach before the mortgage was given, or at all. The relation of debtor and creditor obviously did not exist between Esau and Baumbach when the mortgage was given or at any time thereafter. The latter was at best only a surety for the former to Vogel to the extent of one half of any sum which the latter might fail to realize out of the mortgage security.

It follows from the foregoing that the decision of the trial court is manifestly right and must be affirmed.

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

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Marshall, J.

In regal’d to the subject of this appeal, we repeat what was in effect said in Jameson v. Maxcy, 91 Wis. 563, which turned on a similar question: “ The principles of law here involved have been so often seated and applied, and reduced to such degree of certainty by frequent adjudica-, >tions of this court, that no serious difficulty can exist in any [123]*123case involving such principles, in arriving at a right conclusion.” It is essential to a voluntary assignment for the benefit of creditors that there be a trust, a trustee, creditors, and cestui qué trust who can compel an enforcement of the trust; hence there must be a transfer by a debtor of the title to or control of all or some part of his property to another in trust, to pay a part or all of his debts, and return the proceeds, if any, to such debtor. Jameson v. Maxcy, supra, and cases cited. So, whether an alleged assignment for the benefit of creditors be such in fact must be determined by testing it by the foregoing rule, and unless by such test each and all the essential elements mentioned are found present, the decision must be against the existence of such assignment.

To satisfy the foregoing in this case, the appellant contends that Baumbach was a creditor of Esau and that the mortgage to Vogel was to all intents and purposes for the benefit of the former as well as the latter. But the fact appears, uncontroverted, that the whole indebtedness of Esau to the estate of George Siever, for which Baumbach and Vogel were jointly liable as Esau’s bondsmen, was assumed and paid by the latter. No part of the sum paid was refunded to Vogel by Baumbach before the mortgage was given, or at all. The relation of debtor and creditor obviously did not exist between Esau and Baumbach when the mortgage was given or at any time thereafter. The latter was at best only a surety for the former to Vogel to the extent of one half of any sum which the latter might fail to realize out of the mortgage security.

It follows from the foregoing that the decision of the trial court is manifestly right and must be affirmed.

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

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72 N.W. 380, 97 Wis. 121, 1897 Wisc. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-dohmen-co-v-vogel-wis-1897.

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