32 Fla. 367 | Fla. | 1893
Samuel H. Eckman and Abraham Yetsburg, as co-partners, doing business in the firm name of Eckman & Yetsburg, commenced in the Circuit Court for Hills-borough county, Florida, on the 10th day of December, A. D. 1888, a suit of attachment returnable rule day in January, 1889, against J. K. Munnerlyn. The affidavit upon which the attachment is based was made by an agent of the plaintiffs, and after reciting that fact, states “that James K. Munnerlyn, of the county of Hillsborough, is justly indebted to the said Eckman & Yetsburg in the sum of nine hundred and forty-five and 60-100 dollars, and that the said amount is actu
1st. That the bond of attachment was not executed by plaintiffs.
2nd. That said attachment bond is executed in the firm name of Eckman & Vetsburg, and not by the-individual members of the copartnership.
A jury was waived and the cause submitted to the' court, and the following judgment entered, viz\ “This-cause coming on to be heard upon traverse of the plaintiffs’ affidavit, and upon motion to dissolve the attachment herein, the court having heard and examined the evidence and testimony, and listened to the-argument of counsel, and being fully advised in tfie premises, the court being satisfied that there is not. sufficient evidence presented to sustain the- allegations in the plaintiffs’ affidavit for attachment, it is therefore ordered that said attachment be and the same is hereby dissolved, and the i>roperty held, by the sheriff
The bill of exceptions recites that the objections to the execution of the bond were overruled by the court, but that the attachment was dissolved, and the property held by the sheriff thereunder be released and restored to defendant. Plaintiffs below appealed from the judgment of the court, and the assignment of error here is, that the court erred in granting the order dissolving the attachment. On the issue made by the traverse of the ground alleged in the affidavit for attachment, plaintiffs read without objection the said affidavit, and introduced P. S. Coggins, who testified that he was the agent for plaintiffs, and had been for three and one-half years, and made the affidavit on which the attachment was based. Two days before the attachment was sued out witness presented statement of plaintiffs’ account to Munnerlyn, and he admitted it to be correct. Witness asked Munnerlyn to pay the account, but he said he could not do so, and did not have the money. Munnerlyn ivas then asked to paya part of the account, and he said he could not do it. He was then asked to secure the debt in some way, but said he could not do that, and told witness that C. B. Rogers & Co. had a mortgage on his property. Witness afterwards told Munnerlyn that he (witness) was out of traveling money, and needed some, and Munnerlyn agreed to let witness have it on his own account. Munnerlyn paid nothing on the account, and owed plaintiffs about sixteen hundred dollars. Witness heard other drummers say that they could get nothing from Munnerlyn, and some were going to sue, and others attach. Ed. Clark said he would only sell Munnerlyn goods for cash. Tunno told witness that Munnerlyn wras in failing circumstances. No
Plaintiffs introduced in evidence three mortgages executed by Munnerlyn and wife to C. B. Rogers & Co., to secure an alleged indebtedness therein. The first one was executed and acknowledged on the 19th day of December, 1885, to secure the payment of four promissory notes bearing date November 12th, 1885, each for $1,000, with interest at 8 per cent, until paid, and due respectively six, twelve, eighteen and twenty-four months from date. The property described in this mortgage is certain real estate situated in ClearWater Harbor, Hillsborough county, and also a “stock of merchandise” situated in a mentioned store building in the said town of Clear Water Harbor. This mortgage was not admitted to record' until the 20th day of September, 1888. The second mortgage, executed by J. K. Munnerlyn alone, to C. B. Rogers & Co., bears date December 15th, 1888, and wras filed for record and recorded the 18th day of December, 1888. This mortgage recites that the said Munnerlyn “is justly indebted to the said party of the second part (C. B. Rogers & Co.), in the sum of $4,320, which indebtedness is now witnessed by four certain promissory notes for $1,080 each, dated December 13th, 1888, and due respectively at six, twelve, eighteen months and two years from date, the payment theréof being secured by a mortgage executed December 13th, 1888, by James
Munnerlyn, in his own behalf, testified that he executed to C. B. Rogers & Co. the mortgage bearing ■date December 19th, 1885, and that he owed said firm the $4,000 in this way: When he (Munnerlyn) bought the property on which the mortgage was given, C. B. Rogers & Co. held a mortgage on the same given by Mr. Turner, the owner’, and that he (Munnerlyn) assumed this mortgage. .The stock at that time was ■worth about $2,500. He had never paid any of the principal of the mortgage debt, but had paid the interest up' to the last time, and in making the new mortgage had included the last year’s interest. The wife of 0. B. Rogers was the sister of Munnerlyn’s wife. He (Munnerlyn) had continued in possession of the store and goods from the time of giving the mort.gage up to the time of the levy of the attachment, :and had sold the goods in the usual course of business;' had .sold out part of the original stock and purchased new goods. He had tried to raise the money to meet these claims, and another party named had been trying to raise money for him on some property, and that he had asked his creditors for time. When he and Coggins went to Duneden he (Munnerlyn) consulted with his attorney as to what was best to be done, and discussed making an assignment, but concluded it would do no good. Did make an assignment Decern-
On the testimony, substantially as above given, the decision of the court was adverse to the plaintiffs. There is no controversy as to the indebtedness, and the question for our consideration is whether or not the-court was correct in holding that the affiant in the attachment affidavit did not have good reason to believe-when the writ was sued out that the defendant would fraudulently part with his property before judgment could be recovered against him. Meinhard Bros. & Co. vs. Lilienthal, 17 Fla., 501. It has been decided in this State that a mortgage of a stock of goods by the owner, under which the mortgagor is permitted by the mortgagee to sell the goods at his discretion, or in the usual course of business, is fraudulent and void as; to the creditors of the mortgagor. Logan vs. Logan, 22 Fla., 561. This has been a vexed question in the' courts of this country, and many able decisions are to-be found on both sides of it. In the case of Robinson vs. Elliott, 22 Wallace, 513, the Supreme Court of the United States unanimously held that a mortgage providing for the retention of the mortgaged goods, wares, and merchandise by the mortgagor until after default in the payment of some portion of the debt attempted to be secured, with power to sell the same in the usual •course of trade, and to supply their places with other-goods to be substituted when bought, to the lien of the mortgage, was void in law upon its face as to creditors of the mortgagor. In recent decisions of the same
In Southard vs. Benner, 72 N. Y., 424, it is saidr “Whether the agreement is in or out of the mortgage,, whether verbal or in writing, can make no difference-in principle. Its effect as characterizing the transaction would be the same. The difference in the modes of proving the agreement can not take the sting out of the fact and render it harmless. If it be satisfactorily established, the result xipon the security must be; the same. It is the fact that such an agreement has; been made and acted upon that in law condemns the security, and not the fact that it is proved by the instrument of suretyship, instead of by parol or in some other way.” The conclusion of the court in Freeman vs. Rawson, 5 Ohio St., 1, is summed up as follows, viz? ‘ ‘From the considerations and authorities we have adduced, we are of opinion that these conclusions necessarily follow: That a mortgage of peisonal property, with possession, and a power of disposition reserved to the mortgagor, is fraudulent and void as against his other creditors. If the power of disposition appear
There are certain acts which, under particular circumstances, the la\vr pronounces fraudulent. They may be innocently intended, so far as the idea of moral turpitude goes, yet their inevitable tendency is so uniformly against fair dealing that they are stamped with-a fraudulent character, regardless of the honesty of the particular transaction. Wade says: “The class of cases in which this question has been most earnestly discussed, and in respect to which the most pronounced difference of opinion seems to exist, is that embracing mortgages of stocks in trade. On the one hand, it has been maintained that the mere fact that the mortgagor is permitted to remain in possession of the goods, and continue to sell and dispose of them in the ordinary course, does not necessarily render the-mortgage fraudulent as against creditors. On the other, it is claimed that such an incumbrance amounts, to a conveyance to the use of the grantor, and is fraudulent per se, even when the act is entirely disconnected with any intentional fraud. Where the former ■ view is supported, it is claimed that the question of fraud is one of fact, to be proved by showing an intention to hinder, delay or defraud other creditors-than the mortgagee. Those holding to the latter view condemn the transaction not because it is in fact and!
The execution of the mortgage on the stock of goods and the continued disposal of them in the usual course .of business with the consent and understanding of the mortgagees, amounted to a fraud upon the other creditors of the mortgagor, and they had a right to so regard it. Munnerlyn when payment was demanded by ■the agent of appellants stated that he could not meet the demand, and gave as a reason that C. B. Rogers & •Co. had a mortgage on his property, thereby affording good grounds for such agent to believe that as between Munnerlyn and said mortgagees all of the former’s property was then subject to the mortgage under which he was then selling the goods in the usual course of trade. The agent had a right to rely upon the statement of Munnerlyn himself that the mortgage referred to covered all of his stock of goods at that time although it did not in terms embrace subsequent additions to the stock. Such conduct will sustain an attachment on the ground that plaintiffs have good ground to believe that defendant will fraudulently part with his property before judgment can be recovered against him.
The decision of the court in the record before us was •therefore erroneous in the traverse of the attachment affidavit, and should be reversed.