ing by the petitioner, as mortgagee, to have the same applied upon his mortgage, and no such proceeding has ever been taken. Section 2823, Rev. St. The administrator is charged with that $40, so legitimately collected as rents, and is required to pay the same to the common creditors who had proved their claims. The county court had no jurisdiction to protect the rights of the petitioner as mortgagee merely, and he is an utter stranger in that court. He should have applied in proper time to the circuit court for such relief, if he was entitled to any. The county court could know nothing of that $40, except that it was collected as rents from the real estate in the possession of the administrator, and is applicable, as part of the assets, to the payment of the allowed claims. That court does not, and cannot, know the petitioner as mortgagee simply. If, as mortgagee, he had proved his claim in the county court, and it had been determined in some proper way that there was a deficiency after sale of the land, then, for such deficiency, he might stand as one of the creditors, and have an interest in said $40 as collected rents; but in no other way could the county court consider or adjudicate upon his claim. Neither could the county court order the surrender of the possession of the land to the petitioner as mortgagee. It has no jurisdiction in such matter. It could as well adjudge a common or strict foreclosure of the mortgage. As to the failure of the county court to order the administrator to sell the land subject to the mortgage, the same want of jurisdiction exists. That court knows nothing of the mortgagee, for he has not proved his claim as a creditor of the estate. The conditions upon which the land can be sold to pay debts are specifically prescribed in chapter 167, Rev. St., and there is no jurisdiction in the county court of that matter, outside of the statute. If the county court had clear jurisdiction in the matters, as claimed by the petitioner, it certainly ought not to have put this insolvent estate to the expense of selling the land, when it is absolutely certain that it could not have been sold at such price as would more than pay the mortgage debt. According to the petition, neither the estate, the creditors, nor the administrator, the widow, nor the heirs, nor any one except the petitioner himself, has any interest in such a sale, except to pay the expenses, or would in any respect be benefited by it. It is too plain for argument that the petitioner's only remedy in respect to his mortgage or mortgage interests must be sought by foreclosure or some proper proceeding in the circuit court. He is certainly an intruder in the county court as to the matteis he complains of. The circuit court proceeded sufficiently far in the order made, and very properly dismissed the appeal as to all other matters. The judgment of the circuit court is affirmed. GERMAN BANK v. PETERSON, Garnishee. (Supreme Court of Wisconsin. November 1, 1887.) ASSIGNMENT FOR BENEFIT OF CREDITS-INVENTORY-RESERVATION OF HOMESTEAD AND EXEMPTIONS. In an assignment for the benefit of creditors of all a debtor's property, both real and personal, “except such as are exempt from levy and execution under the laws of Wisconsin," an inventory of the property assigned, wherein the assignor states that he reserves the right to claim any of the lots assigned and inventoried as his homestead, and to select certain articles of personal property as being exempt from levy and sale on execution, is not such an insufficient inventory under the law as to render the assignment void, for it contains all the property assigned. Appeal from circuit court, Calumet county. Seaman & Williams, for appellant. T. R. Hudd and Jos. B. Reynolds, for respondent. TAYLOR, J. The respondent was garnished in the case of German Bank v. Adolph Moeller. The garnishee answered denying that he had any property in his possession belonging to said Adolph Moeller, or that he was indebted to him, and further alleges that before the garnishee process was served in the case, the said Moeller had made a voluntary assignment to him of all his property for the benefit of his creditors; and that he held, at the time the garnishee summons was served, a large amount of real and personal property under such assignment, which had formerly belonged to the said Moeller. The only reason which the appellant urges for holding said respondent liable as garnishee is that the assignment on its face assigned all his property, "except such as are exempt from levy and sale under the laws of the state of Wisconsin;" and that in the inventory which the assignor made of his property thereafter he enumerates all his real and personal property, but in the inventory of the real estate, after describing the same, there is added the following: "The above is listed by said debtor, he reserving to himself the right to claim any and all of the above-described tracts, lots, or pieces of land, as his homestead, or in any way exempt from levy and sale on execution or attachment under any law or statute of this state, and reserving to himself all his exemptions and reserved rights therein." To the inventory of the personal property was appended the following: "The statutory exemptions in favor of debtors, or stock in trade, or any other right of exemption, have not yet been selected from the above property of this inventory. This inventory is filed subject to any such right of exemption which the said Adolph Moeller, assignor, may have therein. The learned counsel for the appellant does not claim that the provision in the assignment, reserving to the assignor his exempt property, renders the assignment void. That question, it is admitted, has been decided against him by this court in Bates v. Simmons, 62 Wis. 69, 22 N. W. Rep. 335; Bank v. Hackett, 61 Wis. 335, 21 N. W. Rep. 280; Goll v. Hubbell, 61 Wis. 293, 20 N. W. Rep. 674, and 21 N. W. Rep. 288; and Cribben v. Ellis, 34 N. W. Rep. 154. In addition to the long list of cases cited by counsel in this last case, sustaining assignments which contain a reservation of exempt property, we cite the case of Muhr v. Pinover, decided June 23, 1887, by the court of appeals of Maryland, and reported in 10 Atl. Rep. 289. It being settled that an assignment containing a reservation of exempt property is valid, it would seem to follow that a claim of such exemption in the inventory afterwards filed could not destroy the assignment. But the learned counsel for the appellant insists that the inventory filed, containing such reservation, is not such an inventory as the law requires, and therefore the assignment under the law, as it was when this assignment was made, is rendered void, because no sufficient inventory was filed within the time prescribed by law. The inventory filed purports to be an inventory of all the property, both real and personal, of the assignor, and is sworn to by the assignor, and certified by the assignee, as required by the statute. The fact that the assignor says that he will claim some of the inventoried property as his homestead, and some of the personal property as exempt to him, does not show that the inventory does not contain all the property which he assigned to his assignee, but is an intimation that it contains the exempt property which he did not assign. It certainly does not show that it is not an inventory of all the property which he assigned to the assignee. The assignment is clearly a valid assignment, and the only possible question that can arise is whether, having scheduled the property as the property assigned by him, this reservation in the inventory is sufficient to entitle him to reclaim the homestead and other exempt property from the assignee, if such assignee has the property in his possession. That question is not in this case, and need not be determined. That is a question to be determined between the assignee, the assignor, and the general creditors in the assignment proceedings, and not in this case, which must necessarily proceed upon the ground that the assignment itself is void. Upon this question, I refer those interested to the remarks of the court in the case of Muhr v. Pinover, supra. The judgment of the circuit court is affirmed. MCKEE v. HULL. (Supreme Court of Wisconsin. November 1, 1887.) 1. HIGHWAYS-PROCEEDINGS TO ESTABLISH-ASSESSMENT OF DAMAGES-FAILURE INVALIDATES PROCEEDINGS. Rev. St. Wis. 1270, provide that, in proceeding to lay out a highway, the town supervisors may agree in writing with an owner of land through which the highway is to pass as to the amount of damages which the town shall pay him, and that, unless the owner has so agreed, or has given a written release of all claims for daniages, the supervisors shall assess such damages. Held, that a failure on the part of the supervisors to award damages to an owner of the land, or, in lieu thereof, to procure from him a written agreement as to the amount of damages, or a written release thereof, is such a defect as invalidates the proceedings of the supervisors, and that such defect may be taken advantage of by any person interested in the laying out of the highway. 2. SAME-WAIVER-RELEASE-ESTOPPEL. Held, also, that a statement to the supervisors by a party that he would allow the road to be run on his land, and that he did not, and would not, claim any damages therefor, was not such a waiver as would bind him, was not a valid release under the statute, and did not raise an estoppel in pais. Appeal from circuit court, Grant county. W. H. Beebe, for respondent. TAYLOR, J. The respondent brought an action in justice's court against the appellant for wrongfully breaking and entering the plaintiff's close, and throwing down and destroying his fences. The defendant answered that the locus in quo was a public highway; that he did the acts complained of for the purpose of removing the fences of said plaintiff from said highway, and that what he did was by order of the board of supervisors of the town, for the purpose of opening such highway. The defendant gave the proper bond, and the case was sent to the circuit court of the county, where the same was tried. On the trial the jury assessed the plaintiff's damages at $3.75, and, by consent of the parties, the court was to order judgment either for the plaintiff for said damages, or for the defendant, if he found that as a matter of law the entry and alleged trespass were justified by the evidence in the case. Thereupon the court ordered judgment in favor of the plaintiff for the said damages, and the costs of the action. From the judgment so ordered the defendant appealed to this court. The counsel for the appellant in a very able brief contended that the evidence clearly established the following facts, viz.: That the supervisors of the town had regularly laid out a highway in said town over the locus in quo, and, after laying out the same, had ordered the same opened as a highway, and notified the plaintiff to remove his fences from within the bounds of such highway; that the plaintiff had neglected to so remove said fences for more than 30 days after the service of such notice, and thereupon the supervisors directed the defendant, the overseer of the highway of the district in which said alleged highway was located, to remove such fences and open such road, and that in pursuance of such order the defendant did the acts complained of. After a careful consideration of all the evidence in the case showing all the proceedings taken by the supervisors in their attempt to lay out a highway over the place where the alleged trespass was committed, we find no irregularity which would render the proceedings void, except the omission to make an award of damages to Hook, one of the owners of the lands over which the road was attempted to be laid. This question has been the main point argued in this court by both parties, and we are led to believe that it was the point upon which the circuit judge declared the proceedings of the supervisors void, and no protection to the defendant. The evidence shows that Hook was a petitioner for the highway, and that such proposed highway led from an exv.35N.w.no.1-4 isting highway across the lands of the plaintiff for about 80 rods west, and then extended west 80 rods more on the line between the lands of the plaintiff and of the said Hook, and terminated upon the lands of said Hook. The evidence also shows that there was an award of damages to the plaintiff, but no award of damages to Hook. It also appears that Hook stated orally to the supervisors that he did not want any damages, and waived all damages for his lands taken by the highway. There was no agreement in writing between said Hook and the supervisors in regard to his damages, and no written release of damages given by him to the supervisors or to the town. This court has held that the supervisors of a town must comply with every substantial requirement of the statute regulating the laying out and opening of highways, otherwise their proceedings will be void. It has also held that certain provisions of the statute are provisions in which the public are interested, such as the presentation of the required petition, the giving of the public notice, the making of the order within the time prescribed by law, and other matters of a like nature; and as to such matters, neither one nor all the persons peculiarly interested can waive their performance. This court has also held that there are other matters which are personal to some of the people; among these is the requirement that written personal notice shall be given to the owners of the land required to be taken for the road. The service of this notice may be dispensed with when the owner expressly waives such personal notice. And so with the award of damages which the statute requires should be made to each owner of land over which any part of the proposed road is to be laid. This award may be waived, and if waived in the manner prescribed by statute, the proceedings will be valid. In the case of the notice, if the person entitled to receive it has waived such notice in a manner that will bind him, no other party interested in the highway can allege the want of such notice as an irregularity in the proceeding. At the same time, this court has held that when such personal notice has been given, and has not been waived by the party entitled to receive it so as to bind him, such irregularity in the proceedings may be taken advantage of by any other party, and the proceedings will he held void for such irregularity, unless the party complaining has in some way estopped himself from attacking the legality of the proceedings, as by receiving the compensation awarded to him for his lands taken for the highway. A failure to award damages, or in lieu thereof, to procure a release of damages, from an owner or owners of land taken for the highway, may be alleged by any other person interested in defeating the laying out of the highway as an irregularity. This we think was clearly decided in the case of Dolphin v. Pedley, 27 Wis. 469. The head-note in this case reads as follows: "A highway is not legally laid out unless the commissioners, within the time prescribed by the statute, file with the town clerk their order describing such highway, and an award of damages to all the persons through whose land it passes, and who have not released the damages." The word "all" is italicized in the head-notes, and seems to have been justified by the language of the opinion in the case. There should have been another qualification added to the last clause of the head-note, "or who have not made an agreement in writing with the supervisors in regard to their damages." The omission of this qualification in the head-note and in the opinion does not detract from the force of the decision. In the opinion in this case the present chief justice says: "Now the statute expressly provides that where the supervisors lay out a highway, they shall make out an order containing a description thereof and file such order, together with the award of damages, in the office of the town clerk; and that, if they fail to file such order and award within the ten days after laying out the highway, they shall be deemed to have decided against such application. So it is evident that the supervisors did not comply with the provisions of the statute in laying out the highway in question, by omitting to award damages to all the persons through whose lands the highway was laid out, and who had not released such damages. This was the omission of a very important matter, and showed that the requirements of the statute were not complied with by the supervisors." This opinion, it seems to us, settles the question that any one interested in defeating the highway may take advantage of the neglect to award the damages as required by the statute; and that such objection is not confined to the person whose damages have not been assessed or released, and is in harmony with the cases which hold that any one interested may take advantage of the want of personal notice to the owners of the land, required to be given by the statute, and that such want of personal notice will render the proceedings void, in the absence of proof showing that such notice was waived by the person or persons entitled thereto and who were not served. It is urged by the learned counsel for the appellant that this case is not in point because it does not appear but that the party complaining was one of the persons whose damages had not been assessed. The facts of that case do not show that the complaining party was a land-owner whose damages had not been assessed, and if that had been considered a material matter by the court, it seems to us it would have been mentioned. Independent of the fact that it is the command of the statute and must therefore be performed, there is a sufficient reason why any party may allege the defect, other than the person entitled to the notice or damages. There can be no question but that the person who had not received the notice, as required by law, or whose damages had not been assessed, and who had not waived such notice, or award of damages, could defeat the opening of the highway, and it would work hardship to every one if it could be opened on one day, notwithstanding the objection of a party who had had notice, or whose damages had been awarded, and on the day after it could be closed by the party who had no notice, or whose damages had not been awarded. Every one having an interest in the highway has an interest to see to it that it is so laid out and opened that it cannot be closed at the will of some other party on the line thereof. While we think this court has settled the rule that any one interested may attack the validity of the proceedings of the supervisors in laying out a highway, and defeat such proceedings, when they have not complied with the statute, although the irregularity relates to matters which may be personal to some of the parties interested, we think it is equally well settled that, as to such matters as are personal to some of the owners of the lands taken, such persons may waive the doing of such acts. Ruhland v. Supervisors, 55 Wis. 664-668, 13 N. W. Rep. 877; Roehrborn v. Schmidt, 16 Wis. 546; Karber v. Nellis, 22 Wis. 215; Austin v. Allen, 6 Wis. 134-142. The only other material question is whether Hook has waived his right to damages for taking his land, in such a way as would have estopped him from objecting to the opening of this proposed highway at the time the same was opened by the defendant in this action. The statule, (section 1270, Rev. St.,) provides, first, that the supervisors may agree with the owners through whose and a highway shall be laid out, as to the damages a town shall pay, and it requires that such agreement shall be in writing, signed by the owner and the supervisors, and filed in the office of the town clerk, and then prescribes "that every such agreement and every release of damages given shall forever preclude such owner," etc. Immediately following this language the same section provides: "If there be any owner, etc., * * * who shall not agree with the supervisors as to the compensation he shall receive for damages sustained by him by reason of the laying out, etc., * * * of such highway, and who shall not, previously to the making of the order laying out, etc., * * * deliver to said supervisors a written release of all claims for such damages, said supervisors shall at the time of making such order assess the damages which such owner will sustain by reason of the laying out, etc., through his lands, and make an award in writing, specifying therein |