Killman v. Gregory

65 N.W. 53, 91 Wis. 478, 1895 Wisc. LEXIS 81

• Court: Wisconsin Supreme Court
• Decided: November 26, 1895
• Status: Published

Opinion

Winslow, J.

The assignment was held void because it purported to prefer a month’s rent of the store building in which the assignor’s business was carried on. S. & B. Ann. Stats, sec. 1693a. If the assignment did not in fact prefer this rent, then it contained no illegal preference, because the assignor owed no other rent to any one, and the expenses of the trust and taxes are preferred by law. The rent which is in terms preferred is the rent due upon the “lands, tenements, and hereditaments aforesaid,” which, by referring to previous clauses of the assignment, are found to be the lands, tenements, and hereditaments “belonging to the said party of the first part, or in which he has any right or interest now due or payable.” It appears affirmatively that the assignor had no real estate except his homestead, which was exempt and was not assigned. The lease for years of the store in which he did business was not land, nor was it a tenement or hereditament; it was a chattel. This is elementary law. There was therefore no rent due upon any land, tenement, or hereditament, or any inte'rest'therein, because no such things were assigned, nor did the assignor have any such things to assign; therefore,.the direction to pay rent due upon lands, tenements, and hereditaments amounts ’ to nothing. It is not an authority to pay the month’s rent of the store, and hence is not a preference of one creditor over another.

It is argued that the fact, as found by the trial judge, that this assignment was made for the purpose of attempting to force the creditors to compromise, renders it void, as a conveyance made with intent to hinder or delay creditors. Ve cannot agree with this. The statute, in substance, declares that an assignment for the equal benefit of the assignor’s creditors, if executed with certain formalities, shall be a legal and valid conveyance. It is difficult to see why a secret intent on the part of the assignor, to the effect that "he will endeavor to persuade his creditors to compromise with him, should invalidate the conveyance. The creditor cannot be coerced. The property must be applied as the statute directs, without any regard to the secret intent. In fact the only effect of the secret intent is to cause the assignor to make an instrument providing for .the equal distribution of his property among all his creditors, — .a result which the law favors. Case v. James, 90 Wis. 320.

It is said that there was no reply to the defendant’s counterclaim; but the case was tried on the merits without objection, and it is too late now to raise such a claim. Bowman v. Van Kuren, 29 Wis. 209.

By the Oourt.— Judgment reversed; and action remanded with directions to render judgment for the plaintiff in accordance with this opinion.