1 S.D. 618 | S.D. | 1891
This case was argued and decided at a former term. See 45 N. W. Rep. 325. The principal questions presented and argued were: (1) The force and effect of the provisions in the lease for a lien for rent, as against the mort-. gage creditors, considered in connection with other provisions of the lease; and (2) the jurisdiction of the territorial supreme court, to which this appeal was originally taken, to entertain an appeal from an order overruling a demurrer. The second question was not considered in the opinion of the court; and on that account, more particularly, though not exclusively, a re-argument of the case was allowed. We held that the stipulation for a lien for rent upon the goods, fixtures, and furniture was, in effect, a chattel mortgage; and that the further provision allowing the mortgagor to make sales “in the usual course of retail trade,” without any proviso or agreement as to the application of the proceeds, or any part thereof, was a stipulated permission to sell for his own use; and that while such permission did not, in terms, extend to the furniture and fixtures, its legal effect was, as against other creditors, to make such mortgage presumptively fraudulent, not only as to the
Referring to respondent’s brief, we do not think Jones, in his work on Chattel Mortgages, intends or undertakes to state the rule, adverse to our former holding, as an established one. He say's it “is held,” and refers to cases in support from four different states. In the immediately preceding section (350) he says, “In New York and one or two other states” the contrary rule prevails, in support of which he also refers to cases from four different states. In a foot-note to Section 351, he quotes from the opinion of Judge Dillon in the Kirkbride Case, 5 Dill. 116, and the same is reproduced in respondent’s brief; but this must not be taken as an expression of this learned judge’s opinion of what the general law is upon this subject. The case was from Missouri, and the opinion simply states that the courts of that state had settled the question for that jurisdiction, and, in accordance with the established rule in the federal courts, the holding of the state court was followed. The American & English Encyclopaedia of Law (volume 3, p. 187) says: “A mortgage or personal chattels which, under the statutes, is fraudulent and void as to a part of the chattels covered by it, (e. g. as being intended to delay and defraud creditors.) is void altogether;” but in the foot-notes cites two cases for, and two against, the proposition, So, in 2 Wait, Act. & Def. p. 191, we find: “It has been held that a mortgage of chattels which is void as to a part of the chattels covered by it, as being given to hinder, delay, and defraud creditors, is void as to the whole;” but recognizes a contrary holding in State v. Tasker, 31 Mo. 445. Wait on Fraudulent Conveyances (section 194) says: “We shall see, presently, that as a general
But respondent insists that under our statute the fraudulent character of the mortgage as to any part of the property could not be determined by the court on demurrer., as a matter of law. Section 4656, Comp. Laws, so far as it relates to the facts or the question under consideration, reads thus: “Every transfer of property or charge thereon made * * * with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor.” By Section 4659 the question of fraudulent intent is declared to be one of fact, and not of law. This last section, making fraudulent intent a question of fact, is not peculiar to this jurisdiction. It is the same in New York, Wisconsin, Minnesota, Indiana, Michigan, Nebraska, California, and perhaps other states; and there is, I think, nearly an unbroken uniformity in holding that such provision, in the language of Davis, J., in stating the law as held by the Indiana supreme court, “applies to cases of actual or medited and intentional fraud, and is not applicable to written instruments which the law adjudges to be fraudulent on their face, and consequently void.” Robinson v. Elliott, 22 Wall. 513. And the courts of these states — Michigan excepted —have-not hesitated to declare void, presumptively or conclusively, as a matter of law, instruments which themselves' exhibit the fraudulent intent. Edgell v. Hart, 9 N. Y. 213;
We come again to the old question, is the security clause in the lease, which it is conceded should be treated a chattel mortgage, presumptively frauduleirt as to furniture and fixtures, as well as to the goods, the stipulation that the mortgagor might sell in the usual course of trade applying only to the goods. Upon what theory does the law declare the mortgage of these goods invalid? The answer is that it was given with a fraudulent intent, — not, of course, morally, but legally fraudulent, — and that because its natural and obvious effect is to hinder and delay other creditors of the mortgagor. When respondent took his mortgage, and therein stipulated that the mortgagor might dispose of a part of the mortgaged property for his own benefit, it was an agreement in advance with the mortgagor that he would not look to nor depend upon such property for his security. The apparent effort and effect was to make it a mortgage as the public, but not as between them-themselves. Under such an agreement the mortgagor might dispose of the bulk of the property, in terms covered by the mortgage, and convert the proceeds to his own use; but if, while such conversion was going on, a creditor should seize any part of it, the mortgagee would stand ready with his mortgage to protect it. The mortgage could not have been intended to, nor did it, give the mortgagee any certain or abiding lien on the goods for the ixayment of his claim; for it distinctly provided that the goods, apparently pledged for such purpose, might be sold at the will of the mortgagor, regardless of payment made or contemplated, precisely as though there were no mortgage. This, we say, makes the mortgage presumptively fraudulent, because its natural and legitimate effect is a fraud upon other creditors; and, as every man is presumed to intend the obvious result of his own acts, the law .presumes that the resulting mischief was contemplated. It is well known that in
For these reasons, and others expressed in our former opinion, we think the mortgage, if fraudulent at all, is so altogether, and that the provision allowing the mortgagor to make sales for his own benefit renders it prima facie so. We think this holding places both mortgagor and mortgagee j ust where they ought to be. If the mortgage was a device to protect the mortgage debtor’s property, in his own interest, and not as security for the mortgage debt, it ought not to be saved, even as to furniture and fixtures; but if the transaction is shown to be an open, fair, and honest one, and innocent of the bad intent which the law presumes from the facts exhibited by the instrument itself, then the mortgage ought to be held good as to ail the property covered by it. The burden is upon the mortgagee. He has voluntarily assumed it by taking a mortgage which, however innocent it may be in fact, is so well adapted to fraudulent uses that the law puts upon him the onus of showing that it is not, in fact, what it appears to be. The following are cases, citing but one from the state, which announce the rule which we have adopted. It is just to ourselves, however, to remark that as to two or three of them we have not had access to the state reports which contain the opinions, but have depended upon reference to and quotations from them in other cases. Russell v. Winne, 37 N. Y. 591; Horton v. Williams, 21 Minn. 187; Burke v. Murphy, 27 Miss. 167; Wilson v. Voight, (Colo.) 13 Pac. Rep. 726; Claflin v. Foley, 22 W. Va. 434; Sommerville v. Horton, 4 Yerg. 541. The following are contra: State v. Tasker, 31 Mo. 445; Barnet v. Fergus, 51 Ill. 352; Davenport v. Foulke, 68 Ind. 382; Hayes v. Westcott, (Ala.) 8 South. Rep. 337; Lund v. Fletcher, 39 Ark. 325. And these in federal courts, following the rule adopted in the jurisdiction in which the case originated: In re Kahley, (Wis.) 2 Biss. 383; In re Kirkbride, (Mo.) 5 Dill 116.
The remaining question, and the one not considered in our
Bearing upon this discussion, it is a significant fact that these provisions of the federal laws have not been peculiar to Dakota, nor to the more recently organized territories. For many years they have constituted nearly a stereotyped formula
We think it is hardly permissible to believe that these repeated acts of territorial legislation, and the constant practice of territorial courts, should not have received some notice from some department of the general government, if they constituted plain and open violations of the laws of congress which were
Following these views, we hold that the act of the territorial legislature of 1887 authorizing an appeal to the supreme court from an order sustaining or overruling a demurrer did not violate either the letter or spirit of the organic act. After full consideration, we see no reason for changing our former disposition of this case.