Carey v. Dyer

97 Wis. 554 | Wis. | 1897

Oassodat, O. J.

It is undisputed that for many years prior to May 25, 1896, F. L. Greer had been running a general ■store at Bloomington, where he resided. That the value of that stock at that time was about $15,000. That for over a year be bad also owned a stock of goods at Lancaster, in tbe same county, wbicb bad, during that time, been conducted by bis brother-in-law, James McQcnigal, and wife; that tbe value of that stock of goods at that time, as per inventory then taken, was $2,040. That tbe plaintiff is a farmer, and tbe brother-in-law of Greer, and had been in the habit for many years — commencing as far back as 1880 — of aiding Greer in his business by loaning money to or advancing money for him, signing or indorsing his paper, and in other ways, so that on May 25,189G, Greer was indebted to the plaintiff, or the plaintiff had become liable to pay Greer’s debts to others, as follows: The plaintiff signed a note with Greer to Pike for $1,000; he had also signed a note with Greer to Woodhouse and Bartley (bankers) for $2,000; he also gave, on that day, his note for $3,269.50 to Woodhouse and Bartley, to balance Greer’s account at their bank. That Greer was at the same time indebted to the plaintiff on an open book account to the amount of $7,565.02, including $1,915 which the plaintiff had borrowed of his uncle for the use and benefit of Greer,— thus making an aggregate amount of indebtedness and liability of $13,834.52. May 25, 1896, Greer gave to the plaintiff a chattel mortgage on his stock of merchandise and store fixtures at Bloom-ington, reciting a consideration of one dollar, and conditioned upon the payment by Greer of the several debts and liabilities mentioned. That upon the back of that mortgage was indorsed the written consent of Greer that the plaintiff, as such mortgagee, might take immediate possession of the stock of goods and fixtures therein mentioned, and sell the same at public or private sale without notice, in his discretion. That such mortgage, with such indorsement, was filed in the office of the town clerk of the town of Bloomington, May 25, 1896, at 2 p. m. That the plaintiff did immediately and upon the same day take possession of the goods and fixtures described in the mortgage. That afterwards and on the same day, Greer executed and delivered to the plaintiff an absolute bill of sale of all his goods, wares, merchandise, and fixtures in Lancaster for and in consideration of $2,000 paid by the plaintiff to Greer, as therein recited. That the bill of sale stated that the property thereby transferred was in a building then owned by McDonald. That Greer thereby assigned to the plaintiff the lease of such store building under and by virtue of which he held the same. And that upon the next day — May 26, 1896 — -the plaintiff took possession of the Lancaster stock and fixtures so. conveyed by the bill of sale, and placed James McGonigal in charge thereof as his 'agent. A copy of that bill of sale was filed in the office of the town clerk of the town of Bloomington.

There is evidence to the effect that the plaintiff received such bill' of sale, and so took possession thereunder in satisfaction of $2,000 of Greer’s indebtedness to him. The real question here involved is as to whether the plaintiff was entitled to the propert}?- covered by the bill of sale as against the seizures of the same by the defendant, as sheriff, on the attachment, June 4 and 18,1896. It is claimed that the bill of sale was void, as against the attachment, on several grounds.

1. It is contended that it was void for want of consideration. The bill of sale is under seal. .A seal even upon an executory instrument is presumptive evidence of a sufficient consideration. E. S. sec. 4195; Warder v. Baker, 54 Wis. 62. The bill of sale was taken after the execution of the mortgage, but on the same day; and the plaintiff had, on that day, assumed new liabilities in behalf of Greer for an amount exceeding the $2,000; and according to evidence on the part of the plaintiff, the bill of sale was accepted as $2,000 then paid. Ve have no doubt the bill of sale was made upon a good consideration. There is plenty of evidence to support the finding to the effect that the sale was absolute, and for a valuable consideration. Shufeldt v. Pease, 16 Wis. 659; Bange v. Flint, 25 Wis. 544; Henry v. Vliet, 33 Neb. 130.

2. Even if the bill of sale bad. been taken as mere additional security for the debts and liabilities mentioned in the chattel mortgage, as contended by counsel, yet that would ■not have justified the taking of the property from the possession of the plaintiff on the attachment, without showing that such debts and liabilities had been paid or discharged, or that the same was given with the intent to hinder, delay, or defraud other creditors of G-reer, and that the plaintiff participated in such intent. There is no pretense that the debts and liabilities mentioned in the mortgage have been fully paid or discharged!

3. It is true that at the time of giving the mortgage and bill of sale Greer was indebted to other parties, and over and above the debts and liabilities mentioned in the mortgage, to the extent of about $6,000. The plaintiff testified, in effect, that at the time of executing the chattel mortgage and bill of sale he did not know that there were claims in favor of any such other creditors for collection against Greer at the Bloomington Bank or elsewhere, or that Greer owed any other debts than those mentioned in the chattel mortgage; that he did not have any reason to suppose that be owed debts for goods in the store; that he then had no reason to believe there was any such claim; and that he had heard nothing of the kind until questioned in this action. Greer testified to the effect that his purpose in executing the chattel mortgage and bill of sale was to secure his indebtedness to the plaintiff, and that he had no other object in doing so. But, even had the plaintiff, at the time, known of such other indebtedness, yet he was not thereby precluded from getting in good faith security for the amount of Greer’s indebtedness and liability to him, nor of accepting from Greer property at a fair valuation in satisfaction of a portion of such indebtedness. Bleiler v. Moore, 94 Wis. 385; Koch v. Peters, ante, p. 492. The value of the property covered by the bill of sale was, as ascertained from an inventory taken, only $40 in excess of the consideration named in the bill of sale. "We are constrained to hold that the finding to the effect that the property covered by the bill of sale was, May 25, 1896, duly sold and conveyed to the plaintiff for a valuable consideration, and without any intent to hinder, delay, or defraud the creditors of Greer, is sustained by the evidence.

4, The contention of counsel that the transaction brings the case within the principles of Winner v. Hoyt, 66 Wis. 227, and other similar cases in this court, is without foundation. The mortgage and bill of sale were taken by the plaintiff for his own benefit, and not in trust for any other creditor. The ease comes, therefore, within the principles of Cribb v. Hibbard, Spencer, Bartlett & Co, 77 Wis. 199; Michelstetter v. Weiner, 82 Wis. 298; and other similar cases in this court.

5. The damages found by the court are not too large, but are sustained by the evidence. The mere fact that they brought less at forced sale is by no means conclusive.

By the Court.— The judgment of the circuit court is affirmed.