19 Conn. 460 | Conn. | 1849
The motion asks for a new trial, on the ground, that the verdict is against the evidence in the cause. It is claimed to be so, in several particulars.
1. It is insisted, that the witnesses, principally relied on, by the plaintiffs, to make out their case, namely, Scovill, Lang don and Blakeslee, really prove, that the mortgages, under which the plaintiffs claim title, are void ; as having been given to secure only the conditional liabilities of the mortgagees ; and as they purported only to secure an absolute note for 6000 dollars, they were, within the principle of Sanford v. Wheeler, 13 Conn. R. 165., invalid, on the ground that they were given to secure a claim altogether different, in its nature and character, from the one referred to and described in the deeds. This question depends upon, whether the consideration of the note for 5000 dollars, was such as the defendants claimed it — -security for certain conditional liabilities of the mortgagees' — or whether it was, as the plaintiffs claimed, the absolute note of the mortgagees to Apollas Warner’s estate for 1500 dollars, and a like absolute note to the bank for 3500 dollars. The jury have found the plaintiffs’ claim true ; and we are satisfied with their finding on this point. The testimony of Mr. Scovill, alone, would leave the question in some doubt: perhaps, upon his testimony, the fair inference would be, that the consideration of the note was such as the defendants claim it; but, while his testimony is not very clear upon the point, that of Mr. Langdon, with whom Mr. Blakeslee agrees, seems to leave little, if any doubt, upon the question. The mortgagees were, probably, men of property, and in good credit; and they loaned to Coley & Bradley their notes, to the amount of 5000 dollars, to enable them to raise money, and took, in exchange, their absolute note for 5000 dollars, secured by the mortgages in question. We see nothing objectionable in this*
It appears, that after the defendants had attached the property mentioned in this suit, together with certain unfinished materials for carriages, the plaintiffs instituted two suits against them ; one, an action of replevin, for the unfinished work on which the plaintiffs had recovered judgment, and that judgment was satisfied; and the other, the present action of trespass, for the finished carriages mentioned in the declaration. The property had all been taken, by virtue of a single attachment, to secure the damages demanded in that process. The officer returned, that it was all taken at the same time; and, it being all found together, or nearly so, on the same premises, either in separate shops, or in separate rooms of the same shop, but all at the same manufacturing establishment : and there also being the evidence of some of the witnesses, tending strongly to show, that it was all taken at the same time, or within a short time after the service of the attachment was commenced, obviously a strong prima facie case of but one taking was made out. Where a variety of articles are attached, as in the case of goods in a store, it will often occupy some considerable time for the officer to take possession of, inventory, and secure them all. The officer, in this case, was employed parts of two days in this business ; yet, if he goes about the service, and with no unnecessary delay, continues in it, till he h,as secured all the goods, it should be treated as but one act; and a party who attempts, in such a case, to split up a single act, into a number of distinct trespasses, is certainly not entitled to have any great favour extended to him. The officer, in such case, generally has no interest in making two or more distinct takings, of what may as well all be done at once; and the presumption, therefore, is very strong, from the facts in the case, in favour of the claim made by the defendants, on this point. Still, this was a question for the jury alone ; and from the testimony of Mr. Graves, we think they were justified, in finding that there were, in fact,- two distinct takings in this case :—
We do not, therefore, advise a new trial, on either of these grounds.
3 The carriages in question, were attached, by the defendants, by virtue of legal process against Coley, Bradley & Co., who had formerly been the undisputed owners of them, and are so still, unless the title had become vested in the plaintiffs, by virtue of certain mortgages to Henry Scovill, Edward Langdon and Ransom Blaheslee, and the assignment of those mortgages to the plaintiffs. There was no question but that the plaintiffs made out a good paper title, by virtue of the assignment to them of these mortgages. But it was claimed, that neither the original mortgagees, nor the plaintiffs, as their assignees, had ever had possession of the property; but, that it had been suffered to remain in the possession of the mortgagors ; and on that ground, that the mortgages were constructively fraudulent and void, as against the defendants’ attachment. And the question now is, whether there was any evidence, which justified the jury in finding, that the possession had been changed from Coley, Bradley & Co., to the original mortgagees, or to the plaintiffs.
The first mortgage was made in 1841; and from that
It is worthy of remark, that the mortgages, if intended for anything more than to keep creditors from attaching the property, were mortgages of specific articles, to secure a note for 5000 dollars ; and yet, for about a year after the possession was first formally delivered, up to the time of the attachment, the mortgagors were carrying on an extensive manufacturing business, with the mortgaged property;— supplying their customers from day to day ; selling the c¡ riages, as they were finished, and they were able to find p chasers ; and yet no account of the avails was, at any tir taken. Can any thing, short of direct and positive evider of the fact, more clearly or satisfactorily show, that the possession, from time to time, delivered to the different assignees of the mortgages, was merely formal and pretended ; that was done, only, because its tendency was, as stated by !\ Lang don, to keep creditors off'? Such a possession, sure is no better than none: if any thing, it is rather worse th none. An entire neglect to take possession, renders a sale, or mortgage, constructively fraudulent; and, in some cases, undoubtedly, is conclusive evidence of a fraudulent trust, when there is none such in fact. But where the possession is only colourably changed, the parties themselves knowing and admitting that its tendency is to keep creditors oil', it can hardly be otherwise, than that such was its principal object; and therefore, fraudulent in fact.
On the ground that there was no real change in the possession of this property; and that there was no evidence in the case, that authorized the jury to find any such change of possession ; we are satisfied, that it remained liable to attachment, as the property of Coley, Bradley & Co.; and conse
New trial to be granted.