Scott v. Seaver

8 N.W. 811, 52 Wis. 175, 1881 Wisc. LEXIS 123

• Court: Wisconsin Supreme Court
• Decided: April 19, 1881
• Status: Published

Opinion

Taylor, J.

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 copy of the assignment filed, must, nnder the provisions of section 1696, be signed in the handwriting of such assignee and officer, unless it appears that they are unable to write, in order to make the assignment valid. On the part of the respondents it is urged, that it is sufficient if it appears that the names of the assignee and officer were signed to the consent and certificate in their presence and' by their direction. The learned counsel for the respondents has also submitted a very able argument for the purpose of showing that an assignment under the statute is valid, and passes the title of the assigned property to the assignee, when the assignor has complied with the provisions of said section 1694, and that the provisions of sections 1695 and 1696 are directory merely, and an omission to comply with them does not render the assignment void so that it can be disregarded in a collateral action. As we have come to the conclusion that the defendants have shown a compliance with the requirements of said section 1694, and also of sections 1695 and 1696, previous to the service of the garnishee summons in this action, it becomes unnecessary to determine the question, submitted by the learned counsel for the respondents, whether the said last-named sections are merely directory.

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 assignment to a resident of this state, and bj the assignee giving the bond required by the statute, conditioned to account for and pay over to the creditors the proceeds of the assigned property. The statute also provides that the bond shall be filed in the clerk’s office, so that all the creditors may have an inspection thereof, and judge of its sufficiency and the sufficiency of the sureties. It also requires that a copy of the assignment shall be filed with the bond, and that upon such copy the assignee shall indorse his acceptance of the trust conferred on him, and that the officer before whom the assignment is made shall indorse his certificate on such copy that it is a true copy of the original, and of the whole thereof, and that the assignee made his indorsement thereon in Ris presence. The filing of this copy of the assignment, with the indorse-ments thereon, is, like all the other requirements of the statute, intended for the benefit of the creditors. It is clearly intended that this record evidence shall be furnished to the creditors to aid them in the prosecution of any actions it may be necessary to institute to protect their, rights, either upon the bond filed or against the assignee. The only object of requiring the consent and certificate to be indorsed thereon must be to furnish proof that the assignee has accepted the trusts conferred on him by the assignment, and that the paper filed is a copy of the original, which is supposed to be in his hands. We do not see why this object is not as well accomplished when such indorsements are made in the presence and with the consent of the assignee and officer, as when made in their own handwriting. It is not urged, even by the learned counsel for the appellants, that it is necessary that the consent itself, or the certificate, should be in the proper handwriting of the assignee and officer, but that the genuineness of the consent and certificate must be made apparent by the proper signatures of the assignee and of the officer. It is urged that section 1696 must be construed as though it read that such consent and certificate so indorsed upon such copy shall-be signed by the written signature of the assignee and officer, and, being so construed, no other or substituted signature will answer the requirements of the statute, unless it be shown they are unable to write. Having construed said section to require in terms the written signatures of the assignee and officer, it is contended that the case is governed by subdivision 19, sec. 4971, ch. 204, E. S., which prescribes that “ in all cases where the written signature of any person is required by law, it shall always be the proper handwriting of such person; or, in case he is unable to write, his proper mark, or his name written by some person and in his presence.”

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 testator, signs bis name to tbe will, it is a good execution under the statute. Robins v. Coryell, 27 Barb., 556; Chaffee v. Baptist Missionary Convention, 10 Paige, 91; Barnard v. Heydrick, 49 Barb., 62, 66; Butler v. Benson, 1 Barb., 526, 533. Under a statute which requires that subscribing witnesses shall sign their names as witnesses, it has often been held that where a person who could not write, simply made his mark as a witness, his name being written by another, that was a good signing. Baker v. Denning, 8 Ad. & Ellis, 94; Jackson v. Van Dusen, 5 Johns., 144; Morris v. Kniffen, 37 Barb., 336; Meehan v. Rourke, 2 Bradf., 385; Harrison v. Harrison, 8 Ves., 185; Addy v. Grix, id., 504; Zacharie v. Franklin, 12 Pet., 151, 162. In the case of Bolins v. Coryell, supra, the court say: “What is done fora man in his presence and by his express direction, is his act and deed. If a man tells his wife or his son, or any other person, to put his name to a deed or promissory note, and it is done in his presence and in pursuance of such direction, it is well executed by him. Such execution, not being in his handwriting, would of course require proof of such authority and direction and manner of execution.”

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-nally accomplished when the indorsement is made with the consent and by the direction of the parties as when made in their own handwriting. This construction of the statute in question is not in conflict with the decision of this court in Mericle v. Mulks, 1 Wis., 366. In that case the statute required that the warrant issued by the commissioners to the overseer of highways, as their authority for collecting the highway taxes, should be signed by the commissioners, and the form of the warrant was given in the statute, showing the signatures of the commissioners subscribed to the same. In that case the court held the warrant void because the names of the commissioners were not subscribed in their own handwriting, and because it was not shown that the clerk signed their names in their presence and by their direction. Whether the court would have held the warrant void, even in that case, had the names of the commissioners been attached to the warrant in their presence and by their direction, is not made certain by anything said in the opinion.

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 all respects applicable to the case at bar. The section of the statute under consideration only requires the assignee to “indorse in writing on the copy his consent,” etc., and the officer to “ indorse his certificate,” etc. It does not say that either shall sign the same, either in his own handwriting or otherwise; and, as is said above, if we are to give the statute a strict construction, there is as much reason for holding that the in-dorsements shall be in the handwriting of the party as that he shall sign in his own handwriting. Yet this is not claimed to be requisite even by the learned counsel for the appellants.We think the requirements of the section are fully complied with when the consent and certificate are indorsed upon the copy in the presence and by the direction of the parties required to make the same. When they are so made, and signed with their names, they are made by them, within the meaning of said section.

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 creditors would not tend to prove such assignment void. See Wilson v. Berg, 88 Pa. St., 167, and cases cited in the opinion.

We find no errors in the record, and the judgment must be affirmed.

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