8 Iowa 96 | Iowa | 1859
The defendant could not claim a trial in this action, of the truth of the matters alleged as the cause for the attachment. There was no error, therefore, in striking so much of the answer, as sought to make this issue, from the files. Sackett, Belcher & Co. v. Partridge & Cook, 4 Iowa, 416; Bowen et al. v. Gilkison et al., 7 Ib., 503. This remedy is upon the bond.
No question arises as to the claim of plaintiff, for that is admitted. The instructions given and objected to, relate to the set-off, and particularly to the effect of the chattel mortgage.
The affidavit,, as a cause for the attachment, sets up that defendant had, all the time, goods, chattels, &c., not exempt from execution, which he refused to give, either in security or payment of plaintiffs’ debt— the affidavit being such as is required by chapter 84 of laws of 1853, 143. The defendant, in his answer, sets up the chattel mortgage made on the 16th of January, and says that he had secured plaintiffs in their debt. He also says that the attachment was wrongfully sued out; and, in determining this, two questions seem to have been made. First. Whether said mortgage was not security ; and, Second. Whether defendant had property which he could give in payment or security. It'is to these questions that the instructions principally relate.
The instructions objected to may be condensed as follows: That defendant, having admitted the justice and correctness of plaintiffs’ claim, and plaintiffs having made a proper allegation in their petition, sworn to the same, and filed their bond, the law presumes that the attachment was rightfully sued out; that this presumption the defendant must
First. Were these instruments executed at the same • time ?
■ Second. In making them, did defendant consult his creditors ?
Third. Was he insolvent at the time, and did he, by these instruments, convey all his property?
Fourth. Was one creditor, by such instruments, preferred to another ?
The Code provides that no general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors of the assignor, shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims. Code, section 977. But for this provision, any debtor might make a general or partial assignment to a trustee, for the benefit of his creditors, with preferences — the said assignment being valid as against the process of such creditors, from the time of the execution of the deed, subject, of course, to any liens upon the property assigned. Brashear v. West et al., 7 Pet., 609 ; Wilkes v. Ferris, 5 Johns., 335; Cross v. Bryant, 2 Scam., 37 ; Hall v. Dennison, 17 Vermt., 311; Pearson v. Rockhill, 4 B. Mon., 296 ; Bebb v. Preston, 1 Iowa, 460; Cowles & Co. v. Ricketts, 1 Ib., 582.
The primary question, and the one upon which the case turns, is, whether the transaction developed by the testimony, was a general assignment; for, if it was, it is not claimed to be valid. Whereas, if it was a sale or mortgage of a portion of defendant’s property, made with the bona fide intention of securing one or more creditors in preference to others, it is not claimed to be perse invalid.
It seems to us that the questions of fact, upon which the character of the transaction was to be determined, were properly and fairly submitted to the jury for their determination, and that the conclusions of law, based upon a supposed state of facts, were correctly stated. Was the defendant insolvent? Did he make the instrument upon his own motion, and without consulting his creditors? Were they made at the same time, constituting one transaction ? Was one creditor preferred over another? Did he convey all his property ? These questions being answered in the affirmative, then they were to disregard the mortgage, and
Upon two of the inquiries, alone, can there be any room for doubt, as to the correctness of their finding. The first relates to its being made without consultation with his creditors. We do not stop to inquire whether it would change the case, though he did consult some of his creditors, plaintiffs not be'ng of the number, nor consenting to the arrangement. Without discussing that question, we may say that there is no reason for concluding, from the testimony, that he executed the instrument otherwise than upon his own motion. It is clearly proven that plaintiffs knew nothing of the mortgage to them, until the day after it was executed. It also appears that some of the other creditors, as well as plaintiffs, procured attachments and levied upon the same goods and merchandize, within a short time after the execution of the mortgages — a course entirely inconsistent with the supposition that they consented to the securffy given. Not only so, but it is very remarkable, if the creditors consented to the arrangement, that just five minutes should have intervened between the recording of each mortgage, neither more nor less. If this was in pursuance of an agreement mutually entered into between the creditors, it could have been so easily proved, that the failure to do so almost justifies the conclusion, that defendant presented them for record in the order preferred bv himself, and not as agreed upon by the creditors. Under all these circumstances, we think that the jury were fully justified in finding that the creditors had no knowledge of the transaction.
The second inquiry relates to the question whether these instruments were all made at the same time, constituting one transaction. It is said that it is impossible that they could all have been made at the same time. This is, true,
We have before stated, that these are the only questions of fact upon which there could be any doubt as to the correctness of the finding of the jury. The question whether one creditor was preferred over another, was more legitimately for the determination of the court than the jury, from a construction of the instruments themselves. It is a proposition so plain in itself, however, that no prejudice could possibly result from thus submitting it, at least, to defendant. Had the jury found otherwise than affirmatively upon it, it would have been most manifestly erroneous.
It may be suggested, that all of the instruments, except the last, were mortgages ; that no trustee is named ; and, therefore, the transaction could not have been intended as a general assignment, and that it should not, for this reason, be so construed. To this, it may be replied, that each
These general remarks sufficiently dispose of the case, and lead to the conclusion that this judgment must be affirmed. Some of the instructions, taken alone, and without reference to the facts of the case, as developed by the testimony, may be subject to objection. It is never correct, however, to thus consider them. They must all be viewed together, and in connection with the case made by the record. Thus viewed, without examining them in detail, we find nothing in them, of which defendant lias reason to complain.
But then, we understand the rule to be, that if plaintiffs made the affidavit, filed the bond, and in all respects complied with the law in procuring their attachment, the presumption is, that it was rightfully sued out; and if defendant claims that it was wrongfully issued, the burden of proof is upon him to establish that fact. Not that he must necessarily do it by positive testimony — as, for instance, by proving positively that plaintiffs did not demand payment or security, or that he did not refuse to pay or secure, or that he did not have property; but it may be shown by the proof of such facts and circumstances as tend to establish the truth of what lie asserts. The case is not different from ordinary ones in practice, and the same rules of evidence apply.
Whether it is proper to allow the party sued, to off-set the damages sustained by him, by reason of the wrongful suing out of the attachment, in the trial of the principal cause, seems not to have been made a question in the court below, or here. We dispose of the case, therefore, upon the points made, without intimating an opinion as to the right to thus litigate the question of damages.
Judgment affirmed.