46 Kan. 718 | Kan. | 1891
The opinion of the court was delivered by
It was declared in the former opinion handed down, (ante, p. 707,) among other things, that—
“The assent of the beneficiary in the deed may be given any time after the deed, is executed, and, in the absence of proof to the contrary, will always be presumed. (Field v. Arrowsmith, 3 Humph. 442.) ‘It will be presumed, on the part of the beneficiaries under a deed of trust, in the absence of proof to the contrary, that each accepts the provisions made for his benefit, and such acceptance may be given at any time after the conveyance is made, unless renounced or waived;.' and such acceptance in fact will relate back to the day of registration. (Furman v. Fisher, 4 Coldw. 626.)’”
Upon this declaration of law we held that the chattel mort
“If a jury should find the fact to be that a deed was made by the grantor with intent ‘to hinder, delay and defraud creditors,’ the law will not presume the assent of a beneficiary to such a deed, however much it might really be for his benefit, ■because this would be to put it in the power of the grantor, by the aid of a legal presumption, to make valid his own fraudulent deed. Such a deed can only become valid by the actual assent of the beneficiary in some form. Until such actual assent, any creditor may levy or attach and hold in defiance of the deed.”
See, also, Townsend v. Harwell, 18 Ala. 301; Stewart v. Spencer, 1 Curtis, 157; Ashley v. Robinson, 29 Ala. 112; Baldwin v. Peet, 22 Tex. 708.
In Shelley v. Boothe, 73 Mo. 74, it was ruled:
“ That if it appeared from the circumstances attending the transaction that the preferred creditor was not acting from an honest purpose to secure the payment of his own debt, but from a desire to aid the debtor in defeating other creditors, or in covering up his property, or in giving him a secret interest therein, or in locking it up for the debtor’s own use and benefit, he will not be protected, and the sale would be fraudulent as to other creditors, because in such cases the fraud of the debtor becomes the fraud of the preferred creditor because of his participancy therein.”
In Smith v. Schwed, 9 Fed. Rep. 483, it was decided “that if the purpose of the preferred creditor is not to secure his debt, but to help the debtor cover up his property, he cannot shield himself by showing that his debt was bona fide.”
In Drury v. Cross, 7 Wall. 299, the preferred creditors unlawfully combined together to raise the decree to an extent which prevented all fair competition at the sale of the property, and therefore, in that case, they were not protected. James v. Railroad Co., 6 Wall. 752, was a similar case of actual fraud by certain parties to prevent fair competition at a sale.
In the case of Cox v. Miller, 54 Tex. 16, there is a discussion of whether the facts in that case show that the mortgage was given to secure a bona fide debt, or whether it was simply a colorable pretense resorted to for the purpose of covering up the property. The facts were set forth, among which were, that the property conveyed was greatly in excess of the pretended debt, and that the security was only a part consideration for the conveyance, and that the motive of the conveyance was to transfer to the grantee a large amount of property under the false claim that it really belonged to her, and for the purpose of putting it beyond the reach of creditors.
In Thompson v. Furr, 57 Miss. 478, it appeared that there was a secret agreement between the debtor and creditor se
These and many other cases which are cited show that where the conveyance to a creditor having a bona fide claim is in excess of the actual debt, or is given to favor the debtor, or to merely cover up the property from other creditors, or to prevent a fair sale of the. property, then the transaction, sale or conveyance, so fraudulently made to the creditor having the honest debt, is void, at least as to the creditors not preferred. (See Wallach v. Wylie, 28 Kas. 138; Winstead v. Hulme, 32 id. 568.) But in this case, the findings, taken as a whole, bear no such interpretation. The chattel mortgage, according to the findings, was not given to favor the insolvent firm, but to protect honest debts'due the bank. The mortgage was not in excess of the debts secured, or given to cover up property, or to prevent a fair sale thereof.
The rehearing will Be denied.