47 Minn. 507 | Minn. | 1891
In January, 1890, the defendant sold to one Berwin certain personal property, being certain furniture, fixtures, liquors, cigars, and other paraphernalia of a saloon in the city of Minneapolis, then in possession of the defendant, for the consideration of $11,000, payable within two years, according to the conditions of instalment notes, and which at the same date were secured by the purchaser by his chattel mortgage on the property sold. The chattel mortgage, which was duly filed, contained the following stipulation: “It is agreed that the party of the first part [mortgagor] shall have the right to sell from said stock of liquors and cigars in the regular course of retail trade in his business of running a saloon; but said first party agrees that he will keep said stock up to the value of fifteen hundred dollars, at all times, and this mortgage shall cover all additions to said stock that may be made from time to time by first party.” It also contained the usual provisions authorizing the taking of possession and foreclosure by the mortgagee in case of default in the conditions thereof; and provided, further, that “as long as the conditions of this mortgage are fulfilled, the said first party is to remain in peaceful possession of said property, and in consideration thereof he agrees to keep said property in as good condition as it now is, at said first party’s cost and expense.” It is found that at the date of the mortgage the value of all the property mortgaged was $11,000, •and that of the liquors and cigars constituting the stock in the saloon, and “covered by the mortgage, was $1,500. And on the 30th of April, 1890, the mortgagor had made default in the conditions of the mortgage, which, as between the parties, was made in good faith to secure purchase-money, and had failed to keep up the stock of liquors and cigars as provided in the mortgage; and thereupon, in pursuance of the terms of the mortgage, the defendant mortgagee proceeded to take possession of the mortgaged property left in the hands of the mortgagor, without objection from him, and thereafter caused the same to be duly sold under foreclosure, May 12, 1890. The value of the
1. It will be observed that the mortgage on its face expressly authorized Berwin to sell at retail the stock of goods mortgaged as his own property, in the ordinary course of business. It is the doctrine of this court that such provision made the mortgage fraudulent in law as to the creditors of the mortgagor. Chophard v. Bayard, 4 Minn. 418, (533;) Horton v. Williams, 21 Minn. 187; Stein v. Munch, 24 Minn. 390; First Nat. Bank of Fergus Falls v. Anderson, Id. 435; Mann v. Flower, 25 Minn. 500, 507. In this we have adopted the doctrine of the New York courts. In Southard v. Benner, 72 N. Y. 424, 431, the court uses this language: “Such an arrangement, included in and making a part of the written instrument of mortgage, would clearly invalidate it as fraudulent in law, as that term is understood; that is, would be conclusive evidence of fraud in fact, and would be so held by the court as matter of law. ” It may be regarded as the settled rule in this state.
2. In the eases above cited no reference is made to the distinction suggested here between existing and subsequent creditors of the
3. And where the mortgage confers the power to sell, a provision requiring the mortgagor in possession to replenish and keep up the stock will not render it valid. The vicious element still inheres in it, •and it remains fraudulent as to creditors. Greenebaum v. Wheeler, 90 Ill. 296.
4. Nor are its character and effect in any way modified by the fact that there was in fact no mala fides on the part of the parties to the transaction. Blakeslee v. Rossman, 43 Wis. 116. They must take •the risk of the consequences which the law attaches to their acts. And whether the intentions of either were good or bad makes no difference in the construction of the mortgage, which the law adjudges fraudulent and void as to creditors, and their claims will necessarily be preferred to one whose act places it in the power of the debtor to obtain a false credit, and enables him to hinder, delay, or defraud them. The law imputes to him the intention necessarily implied from the nature of the instrument.
5. The case of First Nat. Bank of Fergus Falls v. Anderson, 24 Minn. 435, is cited by the defendant as authority for the proposition that the resumption of the possession of the property by the mortgagee under the authority given in the mortgage, after default and in proceedings to foreclose, without any objection on the part of the mortgagor, and before any proceedings instituted in behalf of the other creditors, was a bona fide disposition of the property, and that
6. Under the insolvency act, the receiver is entitled to maintain this action. He is authorized by the statute to bring suits to set aside fraudulent conveyances and reach assets of the insolvent fraudulently disposed of. And it is not necessary that the claims of the creditors should have first been reduced to judgment. The receiver proceeds by virtue of his statutory powers. Merrill v. Ressler, 37 Minn. 82, (33 N. W. Rep. 117;) Chamberlain v. O'Brien, supra; Southard v. Benner, 72 N Y. 424.
7. It is insisted by the defendant that since, by the terms of the mortgage, the mortgagor is only authorized to sell the stock in trade, the mortgage, though void as to the liquors and cigars, is valid as re
It does not appear from the record how much the claims of the creditors amount to, or whether the whole amount sued for will be required to satisfy such claims; but the defendant does not urge the point in his argument. The matter can be adjusted by the court, and any surplus which may remain, and which would otherwise come back to the debtor, the defendant, as his assignee, will be entitled to.
Order affirmed.