27 Neb. 522 | Neb. | 1889
This is a proceeding in error to the district court of Red Willow county. On the 25th day of September, 1887,
The principal contention of plaintiff in error is, that the findings and judgment of the district court are against the clear weight of the evidence and are contrary to the law of the case. There are other assignments, a part of which will be noticed, but as we understand the case, they are of somewhat minor i mportance. The affidavits upon which the mo-
We think it must be conceded that the mortgage above referred to was given and taken in good faith, and to secure actual bona fide debts for money before that time borrowed by defendants of the mortgagees, or the payment of which had been assumed by them; also, that defendants were indebted to Raymond Bros, in the sum of $2,090.27; that soon after the execution of the mortgage Holland and the bank took possession of the mortgaged property, under the mortgage; and that by the execution of the mortgage the mortgagees were preferred to the exclusion of other creditors, but that this preference was not necessarily fraudulent in fact. Indeed the mortgage seems to be conceded to have been valid, and by the garnishment proceedings the surplus remaining after its payment is all that plaintiff sought to recover. Pending the attachment proceedings, Raymond Bros, appeared with their claim and it was agreed that they should purchase the notes and mortgage from Holland and the bank, and that defendants should confess judgment in their favor for the amount due upon their account. This arrangement was carried out, Raymond Bros, paying the full amount due on the notes and mortgage and taking an assignment thereof with the possession of the property, judgment being confessed by defendants. This confession was made and the judgment rendered in the evening, but we think that fact is fully explained by showing that it was made to depend upon the negotiations between Raymond Bros, and the bank and Holland, and was delayed until a late hour, about ten o’clock in the evening. But these facts could hardly be considered as of much importance, except as they might (end to throw light upon, and give color to, the previous conduct of the defendants, as they occurred
There is no doubt but that it was the purpose of defendants to aid Holland and the bank, as well as' Raymond Bros., in preference to other creditors, in the collection of their demands. This, when not accompanied with a dishonest purpose — the debts being bona fide — is not fraudulent (for a debtor has the right to prefer his actual bona fide creditors), and of itself would not sustain an attachment.
There is proof of conduct on the part of defendants, after the institution of the attachment suit, which appears at least unfriendly to plaintiffs, but in the face of the explanatory evidence offered, they are not sufficient to warrant the court in reversing the judgment of the district court. The evidence was also somewhat conflicting, and for this reason we should hesitate to interfere with the findings of the trial court. We are unable to find any convincing proof in the record that any of the partnership assets were secreted at the time, or disposed of fraudulently, or converted into money, with any fraudulent intent; or that any intention of converting the property into money, for the purpose of placing it beyond the reach of the creditors of defendant, existed.
It is also contended that the reservations contained in the mortgage, that the money remaining after the payment of the debts should “be paid on demand to the parties of the first part pro rata,” rendered the mortgage fraudulent as to creditors of the mortgagor other than the mortgagee. As it is not sought to attack the mortgage as against the mortgagees, we are at a loss to see how that question can arise here. If the mortgage is valid as to the parties to it against the creditors of the mortgagor, it must be conceded that it is valid, and not fraudulent, so far as this case is concerned.
Were this an attack upon the mortgage itself, as fraud
Judgment affirmed.