17 Utah 22 | Utah | 1898
It appears from the record that N. C. Christenson made a deed of assignment of all of his property for the benefit of all his creditors, without preference, to respondent, Billings. The appellant, as. United States marshal, thereafter levied certain executions upon the assigned property, and sold it, whereupon this action for conversion was brought by the respondent. The case was tried before the court without a jury,, and judgment found in favor of the plaintiff. The appeal is taken from the judgment. The court, in its general findings, found all the issues in favor of the plaintiff, and in its fourth general finding also found that the deed of assignment was not made, executed, or delivered with intent to hinder, delay or de-fra'ud the creditors of N. C. Christenson, or any of them. By request of appellant’s attorneys, the court, as a part of its findings, found specially that on the day or day previous to the time of making the assignment, and in contemplation thereof, and while the assignor was insolvent, he paid to his employe, Billings, who was afterwards made assignee, a week’s wages, but the court did not consider such act a badge of fraud; that about this time he gave to his wife about $100 worth of goods that formed no part of his stock in trade at his store, but it did not appear where he obtained the goods. The appellant assigns error
If, in addition to the fraudulent intent of the grantor, the deed may, by its terms, and does in fact, aid in the fraud, then it is invalid; but in this case the deed cannot operate to aid in the fraud. It is a general assignment of all the property of the assignor for the benefit of all his creditors, without-any preferences. If it transpires that the debtor concealed any of his property, not included in the assignment, that was not exempt from execution, the title would pass to the assignee, and in that case it would be his duty to take it into his possession when found. Having placed all his property in the hands of a trustee for the purpose of paying all his creditors alike, the assignor cannot be said to hinder and delay his creditors. In the absence of fraud on the part of the assignor and trustee, if the trustee perform his duty as he is presumed to do, the settlement of the claims of the creditors is hastened. It is where the trustee becomes implicated and involved in the fraud, or where the fraudulent intent of the assignor is carried into the deed itself, and made operative through it by the passive or active agency of the trustee, or the deed itself, that it can be said the deed is made to hinder, delay, and defraud creditors. In such a case the deed is void. The record discloses no fraud or participation in any fraud on the part of the assignee. It does not appear that he had any knowledge of the assignment until the day it was made. The fact that he received payment of a week’s wages due him for labor the day before the assignment was made does not connect him with any fraud in making or procuring the assignment to be made, even if the payment was made by the assignor in contemplation of making the assignment. It appears the debt was a just one;
The transfer of about $100 worth of goods to the wife of the assignor a day qr two before the assignment was made, when it appears the goods did not come out of the stock of trade assigned, and it does not appear what kind of goods they were, who they did in fact belong to, where they were obtained, or whether they were exempt goods or not, is not of itself a badge of fraud, and the court was justified in so finding. By the terms of the assignment, property exempt from execution is reserved. The goods in question may have been exempt property. In any event, the facts do not show that any fradulent intent on the part of the assignor was carried into the deed of assignment, and made operative through it, or through the agency of the assignee, to the injury of any creditor. Un
The appellants contend that the grantor fraudulently procured a continuance of a case pending against him, in order that this deed could be executed before judgment. It is held that the execution of a deed of assignment pending a suit against the grantor by a creditor not secured by it, a short time before judgment could be taken against him, will not render the deed void. Sipe v. Earman, 26 Grat. 563; Bump. Fraud. Conv. (4th Ed.) § 332. It is also held
The appellant also contends that the consent of the creditors to the assignment was a prerequisite to its validity. This contention cannot be maintained. It is well established that the assent of creditors to an assignment made for their benefit is not necessary to the validity of the assignment. Burrell, Assignm. (6th Ed.) § 257; Brooks v. Marbury, 11 Wheat. 78; Bump, Fraud. Conv. (4th Ed.) §§ 308-337.
Error is also assigned upon the failure of the court to find upon the issue of the statute of limitations tendered in the amended answer. It appears that the complaint was amended before trial, over two years after the action was commenced, by interlineation, so as to refer to a copy of the deed of assignment annexed to the complaint, instead of to the original. By the amendment no new cause of action or additional parties were added; therefore the running of the statute of limitations was arrested at the date of filing the original complaint, and the amendment related back to the time of the filing of the complaint. 1 Enc. Pl. & Prac. p. 621. “Even on material issues, a failure to find further facts is not reversible error, if, when found, they must necessarily have been adverse to the appellant, and when those already found are sufficient to support the judgment.” Haarstick v. Fox, 9 Utah. 110; Fox v. Haarstick, 156 U. S. 674; Groome v. Ogden City, 10 Utah 59; Maynard v. Locomotive Engineers, 16 Utah 145.
Upon a motion being made before the court to correct the date of filing the findings of fact and conclusions of
There are other questions discussed in the briefs of counsel, but we do not consider them of sufficient importance for further comment. Upon the whole record we find no reversible error. The judgment of the court below is affirmed.