5 Wash. 128 | Wash. | 1892
The opinion of the court was delivered by
The first question that presents itself in this case is, is it necessary to reduce a claim to judgment, issue an execution, and secure a return of nulla bona made thereon, to support a creditor’s bill? Or is an attachment lien a sufficient basis for such an action? Many cases have been cited both by appellant and respondents on this proposition, and from an investigation of the cases it must be conceded that the weight of opinion, considering both the old cases and the new, sustains the doctrine that the claimant must press his claim to judgment, send out his execu
The next question to be considered involves the validity of the mortgage. The mortgage from Doty to Ham was executed on Friday, November 13, and the assignment of Doty to White was executed the following Monday, to wit, November 16. The court below held that the assignment was valid, but that the mortgage was void. It is contended by appellant that under the circumstances of this case, as shown by the proof, the mortgage to Ham and the assignment to White should be considered together, and being so construed that they should both be held to be void as being contrary to the statutes against preferences. And many cases are cited by both appellant and respondents, respectively, in support of, and opposed to, this doctrine. If the contention of the appellant on this proposition be
We have carefully examined all the authorities cited on this proposition, and do not think that even many of the authorities cited by appellant sustain his contention in their application to this particular case. In Berger v. Varrelmann, 127 N. Y. 281 (27 N. E. Rep. 1065), which was one of the strongest cases cited by appellant, the court seems to have felt itself bound by the findings of the lower court. The contention of the judgment creditor in that case was that the lower court did not find as a fact that the assignors confessed the judgment in contemplation of making a general assignment, as a part thereof, and for the purpose of preferring the creditor in that case, and that the confession of judgment, the execution and levy were made in fraud of the general assignment, but that the.trial judge stated such fact as a conclusion of law. And the appellate court said:
“This contention is not well founded; for it is well settled that, though a ‘finding of fact’ be called a ‘conclusion of law, ’ and improperly classified as such, in the decision signed, it will, for the purpose of upholding the judgment, be given the same effect as though embraced within, and designated as one of, the findings of fact.”
Of course if the court accepted these findings of fact, it could not do otherwise than hold the transactions to be fraudulent. It is, after all, a question of intention; a question of the bona fides of the transaction. If it is shown to
‘ ‘ There is nothing in the assignment law which undertakes to avoid dealings previous to the assignment, whether near or remote in point of time, which were in no way connected with it in the intention of the parties. ’ ’
In the case last above cited, the court held the mortgage void, but it gives its reasons for the holding as follows:
1 ‘ The testimony, which it would be useless to recapitulate, satisfies us that the mortgagees well knew of the intention of Goodrich to make an assignment at the time the mortgage was executed, and that the design of the parties to the instrument was to give the stepfather and mother a preference over other creditors in the conveyance he was about to make for their benefit. ’ ’
No such case is presented here, as we read the testimony in this case. There is no testimony whatever which goes to prove a collusion between Doty and Ham. Nothing to show that Ham knew that Doty contemplated making an assignment, even if such knowledge would prevent Ham from legally securing his debt, a point not necessary to be decided in this case. Ham swears that he did not know that Doty thought of making an assignment, and that they had no conversation or understanding concerning that subject. And Doty swears to the same thing, and further that he did not intend to make an assignment until the day after the mortgage was given, when he found he could not make an arrangement with Ham to £ £ restock the store, and give him a chance to keep up the business. ’ ’ There is nothing unreasonable in this statement. Men who are
The mortgage in this case is the ordinary mortgage, with an oral agreement that the mortgagee should sell the mortgaged property, which was a stock of general merchandise, and apply the proceeds to the extinguishment of the debt. It is not questioned that the mortgage was given to secure a hona fide debt. The mortgage is, therefore, prima facie, valid, and is binding on all the parties. Warren v. His Creditors, 3 Wash. 48 (28 Pac. Rep. 257); Ephraim v. Kelleher, 4 Wash. 243 (29 Pac. Rep. 985).
Judgment is reversed, and cause remanded with instructions to enter judgment for defendant with costs.