47 P. 826 | Or. | 1897
Opinion by
On January 23,-1894, the plaintiff commenced an action at law against the defendants E. J. Sprague and wife, and caused all their property, consisting of certain real estate in the City of Portland, to be attached. Thereafter, and on the 25th of the same month, the Spragues mortgaged the attached property to the defendant bank to secure the payment of a promissory note for $400, then long overdue, and which they had repeatedly promised to secure. On the 30th of January they gave another mortgage to the defendant the Portland Lumbering & Manufacturing Company, to secure an indebtedness of $105 due the company, and $400 due their son, Charles S. Sprague, and on the 31st of January made a general assignment for the benefit of creditors to the defendant John Myers. Both the mortgages referred to were accepted by the mortgagees in good faith, to secure bona fide existing debts, and without any knowledge of plaintiff’s attachment, or of any intention on the part of the
From the statement of facts it will be observed that the questions presented by the record are, whether the assignment from the Spragues to the defendant Myers is void as creating an illegal preference, and, if so, whether the plaintiff is estopped by its conduct from insisting upon such invalidity. It is claimed that the assignment is void under section 3173, Hill’s Code, which provides that “no general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless made for the benefit of all his creditors in proportion to the amount of their respective
The rule, however, is well established that several instruments, executed at or about the same time and forming part of the same transaction, will be considered together and as one instrument, and if, when so construed, they have the effect of a general assignment with preferences, they come within the terms of the statute, and are void: Burrows v. Lehndorff, 8 Iowa, 96; Cole v. Dealham, 13 Iowa, 551; Van Patten v. Burr, 52 Iowa, 518 (3 N. W. 524). But, although several instruments may in fact be executed at or about the same time, they do not necessarily form one transaction, nor must they necessarily be construed as one instrument. Whether they do or not depends upon the character of the instruments, the circumstances of the case, and the intent of the parties; in other words, it is a question of fact to be determined from the evidence, like any other fact in the case. Upon this point the case of Van Patten v. Burr is peculiarly instructive. In that case an insolvent debtor executed two chattel mortgages and an assignment, all bearing the same date. A suit by an attaching creditor to set the mortgages and assignments aside first came
Within these principles of law, the solution of this case is not at all difficult. There is not a scintilla of evidence in the record to show that the Spragues contemplated making a general assignment at the' time either of the mortgages referred to were executed. Indeed, the inference from the testimony is that the intention to do so was not formed until after an unsuccessful attempt on the day of its execution to borrow the money with which to pay the plaintiff’s claim. And, further, it is stipulated that the lumbering company, at the time it accepted the mortgage, had no knowledge of any intention on the part of the Spragues to make an assignment for the benefit of creditors, if such an intention existed, and no actual knowledge of plaintiff’s attachment, and the undisputed testimony in reference to the bank’s mortgage is to the same effect. Both mortgages were received by the mortgagees in good faith, in the usual and ordinary course of business, to secure an existing indebtedness, and under the testimony and the law as we finderstand it cannot be taken as parts of the subsequently executed assignment. It follows that the decree of the court below must be
Affirmed.