102 Iowa 720 | Iowa | 1896
“First. That in or about the month of July, 1882, the defendants, John F. Kimball and George H. Champ, formed and entered into a co-partnership under the name and style of Kimball & Champ, composed of themselves, as individual members, both of whom resided at Council Bluffs, Iowa, and thereafter and thereunder engaged in the real estate, loan and banking business at Council Bluffs, Iowa, and continued therein up to and including the twenty-first day of July, 1891; that in or about the month of July, 1888, the defendant corporation, the Kimball-Champ Investment Company, was duly organized and formed, and thereafter, and up to the twenty-first day of July, 1891, was engaged in the business- of loaning money, receiving deposits for investment, and transacting a financial business incident to loaning and investing money; that defendant John F. Kimball was president, defendant George H. Champ, vice-president and treasurer, and one C. B. Towle, secretary of said investment company, and Kimball and Champ and one George B. Gage, were its directors, and its principal place of business'was at Council Bluffs, Iowa; that the secretary of the company resided at Council Bluffs, and Gage resided in New Hampshire and 'Massachusetts, and was the eastern manager of the company; that on, and for some time prior to, the first 'day of July, 1891, the Bank of Minden was a private ;bank, located at Minden, Iowa, and was owned and conducted by Kimball & Champ, one N. L. Trimble being the cashier.
“Third. That the following specific instruments were executed and filed for record at the date and by the parties indicated, to-wit: (1) A trust deed by Kimball & Champ to N. L. Trimble, trustee, for the benefit of the trustee, as cashier of the Bank of Min-den, and the depositors in said bank, executed July 21, 1891, and filed for record July 22, 1891, at 5:10 o’clock p. m. (2) A mortgage on certain real estate, executed by Kimball & Champ to the Kimball-Champ Investment Company, on July 21, 1891, and filed for, record July ,22, 1891, at 4:20 o’clock p. m., to secure the payment of sixteen thousand five hundred dollars, subject to a prior mortgage on the same real estate, for seventy-five thousand dollars, to the Penn Mutual Life Insurance Company, and which mortgage on the same day was assigned by said Kimball-Champ Investment Company to George F. Wright, trustee, and which assignment was filed for record July 22, at 8:45 o’clock p. m. (3) A mortgage on certain real estate, executed by Kimball & Champ to William Siedentopf, on July 21, 1891, filed for record on July 22, at 3:55 p. m., to secure the payment of three thousand six hundred and eighty-five dollars. (4) A mortgage on certain real estate, executed by Kimball & Champ to J. P. Pilbert, on July 22, 1891, at 4:10 o’clock p. m., to secure the sum of two thousand dollars. (5) A deed to certain real estate, executed by Kimball & Champ to the Kimball-Champ Investment Company, on July 22, 1891, filed for record at 4:40 p. m.; consideration named, ninety-three thousand five-hundred dollars; and the same consideration covers, as alleged, other property conveyed on the same day;
“Fourth. That on said twenty-second day of July, 1891, Kimball & Champ were insolvent, and were heavily indebted to the investment company; that on said twenty-second day of July, 1891, out of funds of their own and of the investment company, Kimball & Champ paid off their own depositors, except A. T. Elwell, and provided means for and directed the payment of the depositors of the Bank of Minden, and thereafter they ceased to do business.
“Fifth. That on the twenty-second day of July, 1891, the plaintiff, as treasurer of the Council Bluffs Theater Company, had on deposit with Kimball & Champ, the sum of eleven dollars and fourteen cents, and on that date deposited in his own right the further sum of forty-five dollars; that prior to the said twenty-second day of July, 1891, certain notes had been sent to the Kimball-Champ Investment Company for collection and remittance, and which had been collected, or a secured note taken therefor, and the proceeds so coming into the possession of the investment company had not been remitted, but had been misappropriated, and such misappropriation had existed for some weeks nrior to the said date, and the amounts mentioned
“Sixth. That the plaintiff, on said twenty-second day of July, 1891, accepted the trust, and received the deed therefor, and at once filed the same for record; and thereafter he notified the beneficiaries herein named, of the said trust conveyance, and received acceptances thereof from all except J. J. Burns, hereinafter referred to.
“Seventh. That on said twenty-second day of July, 1891, Kimball & Champ were indebted to the defendant and cross-petitioners, the Omaha National Bank, in-, the sum for which judgment was thereafter rendered; that prior thereto Kimball & Champ executed and delivered to said Omaha National Bank the notes upon which judgment was rendered, and the proceeds so realized were passed to the credit of the Kimball-Champ Investment Company, and the account so arising with the Omaha National Bank was continued in the name of the investment company; that Kimball & Champ did not have an account with the Omaha National Bank; that on July 22, 1891, the investment company, through its president and treasurer, drew out' all the funds with the Omaha National Bank, except twenty-six dollars; that on the twenty-second day of July, 1891, the said Omaha National Bank commenced an action by attachment against Kimball & Champ, John F. Kimball, and George H. Champ, upon the notes given as above, and on the twenty-third day of July, 1891, levied upon the real estate covered by said trust deed; that thereafter, and on the nineteenth day of May, 1892, judgment was rendered in said action in favor of the plaintiff, and against said defendants for the sum of eighteen thousand one hundred and fifty-eight dollars and fifty
“Eighth. That the property included in the trust deed to plaintiff was practically all the property owned by Kimball & Champ at the time of the execution of such conveyance; that at the time none of the creditors of Kimball & Champ were pressing their claims for payment; that on the twenty-first day of July, 1891, the plaintiff was solicited by Kimball & Champ to act as trustee in a conveyance for the benefit of certain of their creditors; that prior to the time when plaintiff made the deposit of forty-five dollars with Kimball & Champ, on the twenty-second day of Julv, 1891. as aforesaid, and accepted the trust deed in
“Ninth: That Kimball & Champ executed and delivered to plaintiff the trust deed in question when they were insolvent and unpressed by creditors, and with the design and intent of hindering and delaying their other creditors in the collection of their claims against them, and that plaintiff had knowledge of such fraudulent intent and design, and participated therein by his acts in connection with said trust conveyance.
“Tenth. That, by their acts, Kimball & Champ undertook to pay off and discharge all their own depositors, and also those of the bank of Minden, have the investment company make a general assignment and convey all their remaining property to a trustee, for the benefit of all parties whose money or property had been misappropriated, with the intent and design to secure a preference among their creditors; to protect themselves, and to prevent the Omaha National Bank and other creditors from attaching their property; that the conveyance to plaintiff was not made in good faith, and for the sole purpose of securing creditors, but was made for the purpose of securing a preference to creditors, and placing all their property beyond the reach of those creditors, sustaining a different relation to them from the beneficiaries named; that Kimball & Champ, at the time they executed and delivered the trust deed in question, did not hope or intend to make
An examination of the evidence in the case fully sustains the findings of the district court. Indeed, it may be said that the material and essential facts; as therein stated, are so conclusively established by the evidence that they ought to be regarded as undisputed.