53 Kan. 713 | Kan. | 1894
The opinion of the court was delivered by
A stock of goods was seized upon attachment by the sheriff of Cowley county as the property of M. S. Hasie, with a view of appropriating the same to the payment of the claims of several of the creditors of M. S. Hasie. An action of replevin was soon brought by George E. Hasie, a brother of M. S. Hasie, to recover the same goods. He claimed them upon a mortgage executed November 29,1888, to secure an indebtedness of his brother to him, which had existed for a period of eight months. The debt was evidenced by a note for $12,978.93, given on March 10, 1888, and upon which there was a credit of $5,690.69, purporting to have been made on November 1, 1888. The mortgage, was recorded on November 30, and possession of the goods was soon afterward taken by the plaintiff. The sheriff answered, denying the allegations of the petition, and alleging that the goods levied upon belonged to M. S. Hasie, and were held under orders of attachment issued in an action wherein George E. Hasie was a party, which action was pending when the replevin action was begun. And he further averred, that the mortgage was fraudulent, without consideration, and void. The trial resulted in a verdict in favor of the sheriff, and several grounds of error are assigned for reversal.
It is first contended that the action was not maintainable, because it was commenced while the attachment suits against
The next assignment of error is based upon instructions to the effect that actual or constructive notice of a purpose on the part of the plaintiff’s mortgagor to hinder, delay or defraud his other creditors would defeat the plaintiff’s mortgage. The jury were advised that if M, S. Hasie made the mortgage with the intent to delay and defraud his creditors, and George E. Hasie knew of such intent, or of such facts as ought to put him on inquiry as to the wrongful intention of his brother, then the plaintiff cannot recover. There were several repetitions of this view included in the charge, and the court refused an instruction to the effect that fraud on the part of the mortgagor does not affect the mortgagee, unless he was a party to it, and received the mortgage with the intent to delay or defraud the creditors of the mortgagor; that both parties must participate in the fraudulent intent to
In National Bank v. Ridenour. 46 Kas. 717. the court, in
Complaint is made that undue prominence was given in the instructions to the relationship of the parties to the transaction. Of course, a failing debtor may prefer a brother or other relative, and no inference of wrong or fraud is to be drawn from the relationship alone. The fact, however, that they are closely related is a proper consideration for the jury, in connection with the other facts of the ease, to aid them in determining the honesty and validity of the transaction. The charge of the court appears to have substantially embodied this view, and we cannot say (hat the court placed too much importance on the matter of relationship.
There are other questions suggested which we do not deem of importance; but, for the errors pointed out, the judgment must be reversed and a new trial granted.