Bloodgood v. Beecher, 35 Conn. 469

Bloodgood v. Beecher

35 Conn. 469 | Conn. | 1868

Lead Opinion

Park, J.

The principal questions in this case arise from the following paragraph in the report of the committee :—

“ Said mortgage was made by the respondent, Beecher, knowing that he was then insolvent; not with the intention of stopping payment or closing his business, but to prevent interruption, and to avoid a suit and an assignment for the benefit of his creditors, in the hope, on his part, that by making large profits and by some turn of good fortune he should be extricated from his embarrassments. He also gave said mortgage to the petitioners because of their urgency, and the representations made by them and their counsel that the official duty of said Bloodgood required him to insist upon security of real estate. But the said Beecher then knew that, if *480placed upon record, it would operate as a preference to them unless assailed within sixty days after it should be recorded. He did not expect that the mortgage would be immediately recorded, and believed that if recorded it would cause a pressure from other creditors which would compel him to suspend his business .and prevent his making payments. He continued his business and did not abandon the same till the 20th day of February, 1867, when he suspended business and made án assignment for the benefit of his creditors to Henry B. Glover, one of the respondents.”

In the late case of Utley v. Smith, 24 Conn., 290, the court say : — “ Three things are necessary in order to make the deed of an insolvent debtor fraudulent and void under the statute of 1851. First, the grantor must be in failing circumstances; second, the deed must be made with a view to insolvency; and third, the deed must be made with intent to prefer one creditor to another.” In regard to the second and third of these essential elements, the court, after reviewing the American and late English authorities upon the subject say, “ We derive this rule, and we think it is the true one, that the quo animo is the important and decisive characteristic,” and hold that the quo animo must be proved to exist as a fact, and cannot be inferred, or presumed to exist, by inference of law contrary to the fact.

In the more recent case of Quinebaug Bank v. Brewster, 30 Conn., 559, the court say, that a question of intent is always a question of fact, and that the rule that a man is presumed to have intended the probable consequences of his own acts, is merely a rule of evidence, to be applied by the triers in determining the quo animo.

The same doctrine is held in other cases. Arnold v. Maynard, 2 Story R., 358 ; Matter of Pearce, 21 Verm., 611; Gorham v. Stearns, 1 Met., 366; Jones v. Howland, 8 id., 377.

Now, was this mortgage made with a view to insolvency? The finding on this subject is as follows : “ Said mortgage was made by him knowing that he was then insolvent, not with the intention of stopping payment or closing his business, but to prevent interruption, and to avoid a suit and an *481assignment for the benefit of his creditors, in the hope on his part that by making large profits and by some turn of good fortune he should be extricated from his embarrassments.” There is no finding here that the mortgage was made with a view to insolvency, as the cases cited require, and how can this court find the fact ? There is no evidence even, tending to show the fact, except that Beecher knew that he was then insolvent. But it is' obvious that insolvency known to a party is not enough, as matter of law, to bring a case within the purview of the statute, for insolvency is there qualified by the phrases, “ failing circumstances,” and “ with a view to insolvency,” and having an “ intent to prefer one creditor to another.” These terms are important, and show clearly what class of conveyances made by an insolvent were intended to be reached by the statute. It is well known that prior to the passage of this act the last transactions of an insolvent, when on the eve of making a general assignment for the benefit of his creditors, consisted in executing conveyances to preferred creditors, who were generally relatives of the insolvent, and took all his -property. The statute is aimed at such conveyances as these and others of a like character, although made somewhat more remotely with a view to insolvency. But this question has been directly decided. Judge Ellsworth, in Utley v. Smith before referred to, says, “ Actual insolvency is not enough, for this does not necessarily prove any particular view of the insolvent in. an ordinary sale or mortgage; his insolvency may have nothing at all to do with it, and be neither the cause nor the occasion of it. It is but a circumstance to be taken into the account in weighing motives.” In Quinebaug Bank v. Brewster, before cited, Judge Sanford says, “ Now, had it been shown that Rose actually knew or supposed himself unable to pay all his debts and consequently that actual insolvency impended over him, that fact would have authorized an inference to be taken into the account and weighed by the triers in determining the question whether he made the mortgage with an intention to evade the operation of the statute and prefer the mortgagee or not. Even *482then, however, no conclusive inference or presumption of such intention could have been made. It would still have been a question of fact to be determined upon all of the evidence.” In Jones v. Howland, supra, Judge Hubbard says : — “ If a party who fears or believes himself insolvent, but does not contemplate stoppage or failure and intends to keep on and make his payments and transact his business, hoping that his affairs may be thereafter retrieved, and in that state of mind makes a sale or payment without intending to give a preference, and as a measure connected with going on with his business, and not as a measure preparatory to or connected with a stoppage in business, such sale or payment is not void as made in contemplation of bankruptcy.”- The facts of that case as stated by Judge Hubbard are substantially the facts found here.

These cases decide that the question whether a conveyance 'was made with a view to insolvency is one of fact; and that insolvency known to a party making a conveyance is only evidence to be considered by the triers in determining the quo animo. Now this court has repeatedly -held that it cannot find facts from evidence reported to it, and for this reason a majority of the court are unable to discover how this conveyance can be. regarded as fraudulent and void under the statute of 1858.

Again, the committee has not only not found that this mortgage was made with a view to insolvency, but on the contrary has substantially found that it was not so made. The finding states that the mortgage was not made “ with the intention of stopping payment or closing his business.” This substantially negates its being done with a view to insolvency, for stopping payment and closing business would be insolvency in a person in Beecher’s condition. In Utley v. Smith the court say: — “ ‘ Failing circumstances ’ seems to imply that the insolvent is about failing and closing his affairs, knowing his inability to continue in business and meet his payments.” Now if a person is in failing circumstances when in the condition described by the court, he certainly has failed when those events transpire. The finding says that Beecher did *483not make the mortgage with the intention of stopping his payments or closing his business. He then did not make it with a view to insolvency. This alone would seem to be conclusive of the case.

But, again, the finding is that the mortgage was made to prevent 'interruption, and to avoid a suit and an assignment for the benefit of his creditors. So far as any purpose or object is shown to have existed in the mind of Beecher moving him to make the mortgage this is all. He knew that he was then insolvent, but he saw his way out of his embarrassments if he could be permitted to go on with his business for a time. The petitioners were urgent to be secured. They and their counsel represented that the official duty of Bloodgood required him to obtain security. Beecher feared that he would be broken up in business unless he complied, and the hope he entertained of extricating himself from his embarrassments induced him to do it for the reasons stated. Whether that hope was a well grounded or vain one is of no importance. Neither is it of any importance how other men would have regarded his financial affairs at that time. The question is, how did Beecher himself look upon his condition, and what motive had he in making the conveyance ? All the motive shown is in conflict with the claim of the respondents. A conveyance made with a view to insolvency has in contemplation a closing of the affairs of the insolvent. This conveyance was made to enable Beecher, in his opinion, to go on with his business.

A conveyance made with a view to insolvency is a part, at east, of the preparation made for that event, as a man realizing that death is at hand prepares his will. This conveyance was made as a sick man takes medicine to prolong his life. Was this conveyance made to keep this property from the general fund of creditors, and to prefer the petitioners to the other creditors of the mortgagor ?' Who can read this finding and believe that, had Beecher known on the 5th day of February, 1867, when this conveyance was made, that all his hopes of continuing business were vain, and that he would be compelled to make an assignment for the benefit of *484all his creditors within fifteen days, this conveyance would ever have been made ? The finding represents Beecher as exceedingly loth to make it. The petitioners had to be earnest in their demands to be secured. The official duty of Bloodgood had to be urged by them and their counsel. The fears of Beecher had to be excited that he would be broken up in business and compelled to go into insolvency unless he complied. And above all, the hope of Beecher that he could extricate himself from his embarrassed condition, could he be permitted to go on in business, had to operate upon his mind before he could be induced to do it.

This question is intimately connected with the one we have considered, and much that has been said in regard to that has an important bearing upon this. Here, as there, the case has to do with the mind of Beecher in making the conveyance, and we are to inquire with what intent it was done. Here, as there, the committee has left the question of fact undecided and given us evidence bearing upon both sides of it. The respondents rely upon the following finding, taken in connection with the fact that Beecher knew that he was then insolvent. “ But Beecher then knew that if the mortgage was placed upon record it would operate as a preference to them unless assailed within sixty days after it should be recorded. He did not expect that the mortgage would be immediately recorded, and believed that, if recorded, it would cause a pressure from other creditors which would compel him to suspend his business and prevent his making payments.” It is true that this is evidence tending to show that the mortgage was made with intent to prefer the petitioners to the other creditors of the mortgagor; but is it conclusive upon the subject, so that it can be said as matter of law, to be applied not only in this case but in all others where like facts appear, that such was the intention ? It must be conceded that there was no active intent in the mind of Beecher to prefer the ¡petitioners; and no intent, unless his assent to make the mortgage can be so construed, which was forced from him by pressure of circumstances. Beecher felt himself in the condition of one about to be ruined unless he *485executed the mortgage. He had no desire to favor the petitioners. There was no reason why lie should. Bloodgood was a stranger to him. The most that can be said is, that he assented to execute the mortgage, knowing that it would operate as a preference should certain events happen. But is this sufficient, when it clearly appears that there was no intent in fact to prefer the petitioners ? Assent is the cold act of the understanding. An intent to prefer is the warm act of the affections. They have hut little in common. This finding is drawn with great care, and shows a design to exclude from the case all intent in fast to prefer the petitioners ; so much so that the words “ would operate as a preference” are guardedly used ; and unless the respondents can show an intent in law to prefer the petitioners, arising from these facts, and contrary to the truth, they derive no benefit from this finding.

The eases referred to, and many more that might be cited, make this question depend upon the quo animo in fact, and if any case can be found where a° contrary doctrine has been held, it has escaped our notice.

Again, it is not found that Beecher knew that the law required that the mortgage should be recorded ; and if he did not know the fact then there is no foundation for the claim of the respondents, for their claim involves the necessity of such knowledge; but it seems from what is found on the subject that he did not know that it was necessary ; for it is stated that he did not expect that it would be recorded immediately, and that he hoped to extricate himself from his embarrassments by making large profits thereafter in his business, and further, that he gave the mortgage to prevent interruption, and to avoid a suit and an assignment for the benefit of his creditors. How could these things be if he knew that the mortgage in all probability would be recorded in a few days, and that insolvency would follow ? He made the mortgage “ to prevent interruption,” and “ to avoid an assignment. ” But the respondents say that he gave it knowing it would bring interruption and would cause an assignment. This seems to me absurd. Whatever other men *486might have thought in like circumstances with Beecher, it is clear that he was anxious to go on with his business, and expected to do so should he give the mortgage, and gave it for that purpose only. This is the sole object that he is found by the committee to have had in view, and if so, then it follows conclusively that this mortgage was not made with intent to prefer the petitioners to the other creditors of the mortgagor, for it is utterly inconsistent with these facts that he could have had such intent. We must take the facts as they are. It is not for us to say how we should have found them if we had been the triers. They have been found, and our duty is to apply the law to the facts as they appear.

On the trial before the committee the respondents objected to the admission of the mortgage and notes in evidence, on the ground of a variance between them. The claim was, that a mortgage and the debt secured by it are so connected together, and each dependent upon the other to lay the foundation for a decree of foreclosure, that neither without the other can be admissible in 'evidence; and that therefore a substantial variance between two such items of evidence will render each inadmissible, because it shows that the debt offered in evidence was not the debt secured by the mortgage. However valid the objection may have been if the facts of the case had supported the claim, it is clear that there was no necessary conflict between the mortgage and the notes offered in evidence in this case. The mortgage description of the debt secured by it, is “ an indebtedness to Bloodgood as receiver, and to Fleischliauer, in the sum of seven thousand, seven hundred sixty-one dollars and nineteen cents secured by certain promissory notes of the mortgagor now held by them. ” The notes are not otherwise described, and it is manifest that this description does not necessarily conflict with the notes offered in evidence, unless it be in the amount of the indebtedness, a small error in which the petition lays the foundation for correcting. It does not necessarily follow that these notes were the individual property of Fleischliauer because they appear to be so upon their face. They may have been partnership property notwithstanding, as the *487petitioners claim. Whether evidence tending to show such fact could be received under the allegations of the petition is another question. If objection had been made upon that ground, it would have, been made to the evidence tending to show such fact, and then the petitioners might have amended their petition; but the objection that was made is clearly untenable.

Again, the petition sets forth that the notes offered in evidence are the identical notes secured by the mortgage, and it makes them a part of the petition. It further sets forth the mortgage, and makes that also a part of the petition. To prove these allegations the mortgage and notes were offered in evidence. They were clearly admissible for that purpose, and whatever claim could have been made to a disagreement between the mortgage and the notes, should have been mad to the effect of the evidence, and not as an objection to its admissibility.

A majority of the court therefore advise the Superior Court to accept the report of the committee, and grant the prayer of the petitioner.

In this opinion Hinman, C. J., concurred.

Dissenting Opinion

Carpenter J.

(Dissenting.) I do not deem it necessary to consider the question whether this conveyance is protected by the 97th section of the statute relating to the settlement of estates. The opinion of the majority proceeds upon the idea, not that the mortgage was received in good faith, but that it was given in good faith. The motives and purposes of Beecher alone seem to be important, and the case is treated as though the 87th section of the act only was applicable to it. That section invalidates a conveyance if made by a party “ in failing circumstances, with a view to insolvency.”

The proposition which I shall attempt to maintain is this,— that this mortgage cannot be sustained, so far as its validity is made to depend upon the motives and intention of the mortgagor.

*488According to the case of Utley v. Smith, 24 Conn., 290, three things are essential to my purpose. 1. That the mortgagor was in failing circumstances. 2. That the mortgage was made with a view to insolvency. 3. That it was made with intent to prefer certain creditors.

Before proceeding to examine separately the several questions' thus raised, I wish to call attention to the nature and design of the statute. It is not in the nature of a penal statute, to be construed strictly, but on the contrary is in the nature of a statute for the prevention of fraud and injustice, and ought to bo liberally and beneficially expounded; and must be so exipounded in order that it may accomplish the object intended by the legislature. Hence, if the case is fairly within the spirit of the act, it ought to be governed by it, whether it is strictly within its letter or not; at least, its efficacy ought not to be impaired by a narrow and technical interpretation of the language used. Its design is not to punish either party to a conveyance by way of a penalty or forfeiture, but to effect an equal and just distribution of the insolvent’s effects, pro rata, among all his creditors. Now it cannot be denied that sustaining this conveyance defeats the object of the statute, and exposes the creditors of this estate to all the mischiefs intended to be avoided by the legislature.

Keeping these suggestions in view let us examine carefully the case before us.

1. It is not denied that the mortgagor was in failing circumstances. He was deeply insolvent. Many of his debts were past due, his creditors were pressing, and his affairs were so critical that an attachment or a mortgage put on record was sure to be followed by proceedings in insolvency. -

2. "Was this mortgage made with a view to insolvency ? It becomes important to understand precisely what this expression means. I apprehend that it does not necessarily mean, as tlie opinion of the majority seems to suppose, an intention on the part of the mortgagor that the mortgage should be followed up by an assignment, or other proceedings in insolvency: If that, and that alone, is the meaning, then the fact *489found by the committee, that the mortgage was made, “ not with the intention of stopping payment or closing his business, but to prevent interruption, and to avoid a suit and an assignment for the benefit of his creditors, &c, ” would control the decision. But if the expression means, as I think it does, much more than this, then this part of the finding should have but little weight in determining this question. This expression is equivalent, in its legal significance, to the expression found in the English and American bankrupt acts, “ in contemplation of bankruptcy,” and should receive the same interpretation. That expression cannot refer solely, nor principally, to voluntary bankruptcy, for such a thing is hardly known to the English statutes where it originated. That it is not limited to cases where the bankrupt intended to have proceedings instituted against him, is apparent from the decisions. In Fidgeon v. Sharpe, 5 Taunt., 539, Lord Chief Justice Gibbs says, “ With respect to this doctrine of contemplation in cases of bankruptcy, we have nothing, either in the common or statute law, to show what it is. The cases in which this doctrine was introduced make it depend upon the quo animo ; if a trader thought he should not have .enough to pay all his creditors, it must be presumed that, if he gives full payment to one, he does it in contemplation of bankruptcy. ” In Arnold v. Maynard, 2 Story R., 357, Judge Story, after reviewing the English decisions on this subject, says, “ I should deduce the general conclusion from the English cases to be, that a conveyance by a person, knowing himself to be insolvent, to one creditor, with a design of giving him a preference over the other creditors, in the event of his own expected bankruptcy and stoppage of business, was of itself an act of bankruptcy, as a fraud upon the bankrupt laws. ” And again, on page 353-4, “ If the question meant to be asked was, whether, if the mortgagor, at the time of executing the mortgage, knowing his own insolvency and inability further to carry on his business, but having no 'immediate intention on his part to seek by petition the benefit of the bankrupt act, or thereby to enable his other creditors to proceed against him in invitum, to have him declared a bank* *490rupt under that act, but actually designing and intending thereby to give a preference to the mortgagee over all his other creditors, it was such a security, conveyance or transfer as was fraudulent and in contemplation of bankruptcy within the meaning of the bankrupt act, then I say, that his mere private intention cannot overcome the legal intention and purport of the act; and it is to be treated, in the sense of the statute, as made in contemplation of bankruptcy, although it was not done by him with the intention of being declared a bankrupt. When the statute speaks of a conveyance or transfer in contemplation of bankruptcy, it does not necessarily mean, in contemplation of being declared a bankrupt under thé statute, but in contemplation of actually stopping his business because he is insolvent and ritterly incapable of carrying it on. ”

My investigation of this subject has satisfied me that the construction now virtually given to this statute by the majority is altogether too narrow. The language used, the nature of the case, the object of the statute, all the circumstances, combine to show that it cannot depend entirely upon the wishes or intention of the party. The act of mortgaging may be under such circumstances as to have a “ legal intention and purport, ” which cannot be controlled by the mere private intention of the mortgagor. Hence, if a party intends, expects or fears insolvency as an impending event, and, influenced by such intention, expectation or fear, makes a conveyance or transfer of his property, or pays a debt, with a design to prefer one creditor to another, he does the act with a view to insolvency within the meaning of the statute. The fact that he does so with the hope that insolvency will thereby be postponed, or entirely prevented, will make no difference, provided insolvency follows, and a preference of creditors is the result; for it is to be borne in mind that the object aimed at is to avoid a preference and secure an equal distribution among creditors. .

The question now returns, was this mortgage made with a view to insolvency ? He was so badly insolvent, that his estate.in any event would pay less than thirty cents on the dol*491lar. With all the property at his command he had nearly ceased working his own stock of materials, and was working the stock of another. • To secure this debt required one quarter of his entire property, and one third of his property after paying prior incumbrances, which still further embarrassed him by materially reducing the means at his command. Other debts were then due, and he was fully aware of his situation. But this is not all; for he knew that insolvency was sure to follow the mortgage as a consequence thereof. It is expressly found that he “ then knew that if placed upon record it would operate as a preference to them unless assailed within sixty days after it should be recorded. ”

It is true he did not expect that it would be immediately recorded, but there was no agreement to that effect, and no facts found that would justify such an expectation. He must have known that the law required it to be recorded, and therefore must have known that it would have been done in the ordinary course of business, in the absence of any arrangement to the contrary, and that it must very soon result in breaking up his business. He was in this dilemma; a suit by attachment, with which he was threatened, would break him up and precipitate insolvency; a mortgage would in all probability have the same result, but there was a possibility that it might be postponed for a while, and that in the meantime large profits or some unexpected turn of fortune would extricate him from his embarrassment. He was forced to submit to the one or the other. He chose the latter, as a means of preventing immediate insolvency. He intended thereby to prevent interruption by a suit, and an assignment as a necessary consequence, but with a moral certainty that the mortgage would have the same result after a brief interval.

I cannot assent to the proposition that this was done for the purpose of continuing his business, within the meaning of Utley v. Smith, and other cases cited. On the contrary it is quite clear to me that it was done with a view to insolvency. He feared and expected insolvency ; and that fear and expectation entered into and formed a part of the act of mortgag*492ing. His critical situation, financially, was both the cause and occasion of the mortgage, and it was so understood by him. The act, therefore, had a “ legal intention and purport, ” which ought to stand, notwithstanding his hopes and wishes to the contrary.

I am not troubled with the suggestion that this is a question of fact, and that the committee has not found, in terms, that this was done with a view to insolvency. All the facts which characterize the transaction, and which are necessary to show that it is within the statute, have been found, and it only remains for the court to apply the law. There is nothing, as it seems to me, in the case of Utley v. Smith, inconsistent with this view. There, the only fact found was, that the mortgagor was insolvent; and the court was asked to infer, as matter of law, from that naked fact, that the mortgage was within the statute. The court very properly held that it could not be done. Here, many other facts are before us, and I see no legal difficulty in disposing of the case. But my views on this point are more fully stated under the nest head, and I will not enlarge.

3. The third and last question is, did the mortgagor intend to prefer the mortgagee to his other creditors ?

This is purely a question of intention. In this respect it differs somewhat from the question just considered.

In relation to this question, the majority say, “ The committee has left the question of fact undecided, and given us evidence bearing upon both sides of the case.” If this be so the duty of this court is manifest. A case of this importance ought not to be determined and finally disposed of, with an important and material question of fact undecided. The case is reserved for our advice. In such cases the usual course is, to remand it for a further finding of facts. Instead of doing so, a majority of the court, inconsistently as it seems to me, proceeds to determine the question by finding, as a fact, that he did not intend to prefer creditors; notwithstanding the effect of such finding will be to defeat the operation of one of the most important acts upon our statute book, the wisdom and propriety of which is questioned by no one.

*493This seems the more extraordinary, inasmuch as the corner stone of the decision is, that it is not competent for this court to draw an inference of fact.

But this is not all. Prominence is given in this part of the case to the fact that the committee has not found that the mortgagor knew of the law requiring mortgages to be recorded. It is then assumed that he was ignorant of it. This assumption rests on no other foundation than an inference of fact, drawn from the finding of the committee that Beecher “ did not expect that the mortgage would be immediately recorded.” It is to be presumed that Beecher knew the law. But without this presumption, there is hardly room for the inference that a business man, of ordinary intelligence, was ignorant of the plain requirements of a law so universally known.

The opinion of the majority further says: “Now this court has repeatedly held that it cannot find facts from evidence reported to it, and for this reason a majority of the court are unable to discover how this conveyance can be regarded as fraudulent and void under the statute of 1853.” I am not aware of any such decision. No authorities are cited, nor do I believe that the proposition as applicable to- a case like this has ever before been promulgated as law. There is a class of cases, of which this is one, involving questions of fraud, intention and the like, in which the main fact is not susceptible of direct proof, but can only be proved by way of inference from other facts. In these cases, when the other facts appear, this court has repeatedly drawn the inference. This was done in the case of Corbin v. The American Mills, 27 Conn., 278, also in Dimock v. Town of Suffield, 30 Conn., 129, and in many other cases which might be cited. That the court has the power to draw inferences of fact in such cases I cannot entertain a doubt. It may not always be advisable to exercise this power. When however a cas e has been argued upon its merits, and justice requires it, w& ought not to hesitate. At all events it is unwise to deny ourselves the power to do so. The cases of Utley v. Smith, and Quinebaug Bank v. Brewster, are not in conflict with *494this view. In each of these cases the gist of the decision, when carefully examined, will be found to be, that there were not facts enough found to enable the courts to draw the conclusion claimed.

But in this case I think sufficient facts are found to enable us to come to a right conclusion. The facts referred to under the preceding head must be borne in mind, as important to be considered also in this connection. Moi'eover, it is expressly found that “ Beecher then knew that if placed upon record the mortgage would operate as a preference to them, unless assailed within sixty days after it should be recorded.” That he must have known that it would be recorded I have already shown. The conclusion then is inevitable, that he knew the mortgage would operate as a preference, or be invalidated by proceedings in insolvency. In either event, the intention in a legal point of view exists. It will hardly do to say that a sane man can do an act which must inevitably have but one result, without intending that result.

I cannot avoid, in this connection, calling particular attention to one paragraph in my brother Park’s opinion. “Whatever other men might have thought in like circumstances with Beecher, it is clear - that he was anxious to go on with his business, and expected to do so should he give the mortgage, and gave it for that purpose only. This is the sole object found by the committee that he had in view, and it so, then it follows conclusively that this mortgage was not made with intent to prefer the petitioners to the other creditors of the mortgagor, for it is utterly inconsistent with these facts that he could have had such intent.” Thus Beecher is made to do an act, intending only a remote, and, under the circumstances, a very improbable consequence of the act; and the court is called upon to say, and a majority do say,.that having this object in view he could have no other, and therefore that he did not intend that this deed should operate to prefer creditors. I cannot assent to this process of reasoning. The object of a mortgage is security. A man may be induced to gave security against his will even, hoping thereby to derive some incidental advantage. That is precisely the case before *495us. Beecher intentionally gave security, as a means of postponing, for a short time, proceedings in insolvency. The argument that such a hope, whether well or ill founded, excludes from the mind of the mortgagor all intention of giving security is incomprehensible to me. He intended then to give security. If he intended that, then he intended a preference, as the deed, under the circumstances, could not secure the debt without preferring the creditors.

In conclusion I desire to say, that I have examined with some care the English and American decisions bearing upon this subject, and I believe that no case can be found which amounts so nearly to a judicial repeal of the statute as the present. The importance of this question, and the effect which the decision is likely to have upon the business interests of the state, have constrained me to give at length my reasons for dissenting from the views expressed by the majority.

In this opinion Butler, J., concurred.