Page v. Johnston

23 Wis. 295

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

Cole, J.

This action is brought against the executor of am assignee of a mortgage, to recover the penalty given by section 46, chapter 86, E. S., for refusing or neglecting to discharge a mortgage which had been paid and all the conditions thereof performed. The circuit court held that the section did not apply to the defendant, and accordingly excluded the plaintiff’s evidence, and dismissed the complaint. Was this interpretation of the statute correct % We are inclined to hold that it was.

The language of the provision is: “ If any mortgagee, or his personal representative, or his assignee, as the case may be, after a full performance,” etc. The statute specifies the mortgagee, or his personal representative, or his assignee, against whom the • action may be brought. Eut it is said that in legal parlance there are assignees in law and assignees in fact; and that the word “ assigns,” or “ assignees,” frequently designates and includes executors and administrators, the assignee of an assignee mgerpetimm, the heir of an assignee, the assignee of an heir, the assignee of an assignee’s executor, and a devisee (Burr. Law Diet., tit. “ Assigns ”); and that the word “ assignee ” is used in that general, comprehensive sense in this place. But it is quite clear that the legislature used the word “ assignee ” in this section to denote an assignee in fact, and not an assignee in law. Eor it will be noticed that the words “ personal representative ” are used, and obviously they are a needless repetition, if the word “assignee” was intended to include executors and administrators, or an assignee in law as well as an assignee in fact. We therefore think the word “assignee” cannot have the enlarged sense given to it in this statute, for which the counsel for the plaintiff contends. It would' be the merest tautology to use the words “ personal representative,” and then employ a term which would include personal representatives as well as a large number of other persons. In the case of Stone v. Lannon, 6 Wis. 497, it was said that an action brought upon this statute was to recover a penalty, and that the statute must receive a strict construction. This rule of strict construction would be violated, as well as the cardinal one that effect must be given to every word of the statute, if practicable, were we to hold that the word “assignee” in this section included an assignee in law, or the executor of an assignee.

By the Gov/rt. — The judgment of the circuit court is affirmed.

Mr. Justice PaiNE did not sit in this case.