Hirshkind & Co. v. Israel

| S.C. | Oct 31, 1882

The opinion of the court was delivered by

Mr. Justice McIver.

The main object of this action is to set aside, on the ground of fraud, a mortgage on a stock of goods, wares and merchandise, given by the defendant, Charles Elias, toll is co-defendant, Morris Israel.

It is conceded that there are only two questions presented by this appeal, one of fact and the other of law. The first is whether the evidence was sufficient to show that the mortgage in question was executed with intent to hinder, delay and defeat the other creditors of the mortgagor; and secondly, whether the mortgage is not, as matter of law, fraudulent and void because it covers not only the stock of goods on hand at the date of the mortgage, but also “such goods, wares and merchandise as may from time to time hereafter be acquired in lieu and place thereof in the current business of the said mercantile establishment; ” thereby plainly evincing an intention that the mortgagor should continue business by selling the goods in the usual course of trade, and replenishing the stock from time to time as occasion might require.

The first question is one of fact and it has been determined adversely to the appellants by the master, to whom all the issues in the action were referred, and his conclusion has been concurred in by the Circuit judge. Under these circumstances this court, according to the well settled rule, will not interfere unless the conclusion below is without any testimony to sustain it, or is-manifestly against the weight of the evidence. It certainly cannot be said that there is no testimony to sustain the conclu-sion reached by the master and concurred in by the Circuit judge; and we think it quite clear that such conclusion is not manifestly against the weight of the evidence. On the contrary, it seems to us that there was but little, if any, evidence of any fraudulent intent on the part of the defendant Israel. If his testimony is to be credited, (and it is not impeached; but, on the contrary, is corroborated in a very material part by the testimony of Mr. Melton,) the transaction, so far, at least, as Israel wras •concerned, was a bona fide effort to secure a debt justly due him, and we are unable to discover any sufficient reason for imputing any fraudulent intent to him. We do not, however,'propose to enter into a discussion of the testimony, as it is sufficient for us to say that the argument here, together with a careful examination of the testimony, has failed to show any error in the conclusion reached by the master and affirmed by the Circuit judge.

The next question, though much discussed elsewhere, with varying results, has never been determined in this State, so far .as we are informed. We do not deem it necessary to go over the discussion, for the very full, satisfactory and conclusive argument of the Circuit judge leaves us nothing to add, and we are quite content to rest our conclusion upon the reasoning employed and the authorities adduced by the Circuit judge in his able and exhaustive decree.

It is alleged, however, that the Circuit judge has fallen into two errors of fact: one in stating that the mortgage to the plaintiffs allowed the mortgagor to retain possession of the mortgaged goods after condition broken; the other in stating that the mortgagor made no additions to his stock of goods after the execution of the mortgage to Israel; and these, perhaps, should be noticed.

Even conceding these allegations to be well founded, we are unable to perceive how this could affect the conclusion reached by the Circuit judge. His argument to show that the mortgage in question was not to be adjudged fraudulent, simply because it •contained a provision authorizing the mortgagor to continue business, selling and replenishing his stock in the usual course of trade, does hot rest upon either of these statements, which were simply thrown in — one, perhaps, for the purpose of showing that, 'the mortgage of plaintiffs was subject1 to the same objection as they were urging against the mortgage to Israel, and the other for the purpose of showing that the position which seemed to have been practically abandoned before the master, that the mortgage of Israel must be postponed to the mortgage of plaintiffs, so far as the goods acquired subsequent to the execution of Israels mortgage were concerned, did not have the requisite basis of fact to rest upon. This, however, was an independent question, and one which could in no way affect the main question, as to whether a mortgage containing a provision like the-one in controversy would thereby be rendered fraudulent per se.

We agree with the Circuit judge that the pleadings and evidence did not present this matter in such a way as to make it “a. living issue in this case.” In order to present the question fairly whether the lien of the mortgage to Israel should be postponed to that of the plaintiffs, so far as any additions to the stock of goods were concerned, it would not be sufficient to show that such additions were made after the date of the mortgage to Israel, but it would be necessary to go further, and show that such additional stock was in the store at the time of the execution of the mortgage to the plaintiffs, for their mortgage does not purport to cover any goods except such as were in the store at the time their mortgage was executed. Upon this point the testimony is silent. There was evidence that additions to the stock had been made after the execution of the mortgage to Israel, but when such additions were made, whether before or after the mortgage to the plaintiffs, does not appear; nor does it appear what portion, if any, of such additional stock was in the store at the date of the mortgage to the plaintiffs.

But waiving all this, it seems to us that under the doctrine established by the case of Parker v. Jacobs, 14 S. C. 112, the lien of Israels mortgage covered as well the subsequently acquired goods as those in the store at the time it was executed.. His mortgage was not given to secure future advances, bnt an existing debt, and the lien took effect so soon as the goods were acquired by the mortgagor, and is not postponed to the lien of' the junior mortgage, as might be the case if the advances were made and the debt arose subsequently to the execution of the second mortgage, under the principles announced in Walker v. Arthur, 9 Rich. Eq. 401.

The judgment of this court is that the judgment of the Circuit Court be affirmed.