37 Neb. 800 | Neb. | 1893
The plaintiff in error attached a stock of goods belonging to the defendant in error. The district court of Dawes county discharged the attachment and the plaintiff in error brings the case here and asks the reversal of this order of the district court. The grounds of attachment alleged in the affidavit are: First, that said defendant has assigned and disposed of his property with intent to defraud his creditors; second, that the defendant fraudulently contracted the debt.
As to the first ground of attachment, the evidence in the record not only does not show, or tend to show, that the-defendant in error had disposed of his property, or any of it, with intent to defraud his creditors, or any of them, but the evidence affirmatively shows that the disposition made by the defendant in error of his property was for the purpose of securing his creditors. It appears from the evidence that the defendant in error owned a stock of mer
The contention of the plaintiff in error seems to be that as the value of the property mortgaged was $5,925.41, and the debt secured by the first mortgage was only $2,500, the security was so greatly in excess of the amount of the first mortgage debt as to render the mortgage fraudulent in law, whatever that may mean. But these mortgages were all made and filed on the same day and within a few minutes of each other; in other words, they were one transaction. We are not prepared to say that a mortgage would be fraudulent solely because the value of the property mortgaged was two, or even three, times greater than the debt. Whether it would be, would be a question of fact for a jury or trial court, and not a question of law. A debtor has a right to prefer his creditors; to pay part in full to the exclusion of others; and he has a right to secure the debts of a part of his creditors to the exclusion of the others; and this is true whether he be insolvent or in failing circumstances, or not. All that the law requires of him is that he should act honestly; that his disposition of his property should not be made for the fraudulent purpose of hindering, delaying or defrauding his creditors, and
We now turn our attention to the second ground of attachment, viz., that the defendant in error fraudulently contracted the debt. It appears from the evidence that one Mead, a traveling salesman of the plaintiff in error, sold the goods to the defendant in error for which' this attachment suit was brought. Mead made inquiries of the cashier of a bank in Chadron as to the financial standing of the defendant in error, and was informed, so he says, that the defendant in error was “ all right.” He communicated by letter this information to the plaintiff in error. The evidence also shows that the plaintiff in error, “in selling said goods and in granting to said defendant such credits, fully believed in and relied upon the statement in said letter (Mead’s) contained, to the effect that ‘ Mr. Miller, the cashier of the First National Bank told me (Mead) he (defendant in error) was all right,’ and said statement was the consideration and basis upon which said goods were sold and delivered and said credit extended to said defendant.” It seems that the bank cashier acquired his knowledge of the defendant in error’s financial condition from a statement made by the defendant in error to the president of the First National Bank on September 24, 1890. The president of the bank swears that at this time defendant in error made a statement to him of his indebtedness, and that some of the debts secured by the mortgages given were not included in the statement of the debts mentioned by the defendant in error, though it now appears that such debts were then in existence. Defend
Counsel for plaintiff in error says: “Plaintiff was entitled to rely on the representation made by the defendant to the First National Bank of Chadron, and communicated to it as to his indebtedness, and such statement, if relied upon and untrue, forms a ground of attachment, viz., that he fraudulently contracted the debt.” Counsel cites Stevens v. Ludlum, 48 N. W. Rep. (Minn.), 771, as authority for. his contention. In that case it is said : “ One making representations relating to his business to a commercial agency may be estopped as to its patrons to whom it communicates such representations.” This case is not in point here. The bank at Chadron was not a commercial agency, nor does it appear from the record that the plaintiff in error was a patron of the bank. There is no evidence that the representations made by the defendant in error to the president of the bank were intended or expected by the defendant in error to be communicated to the plaiptiff in error, or any one else. Besides, the preponderance of the evidence is that the statements made by the defendant in error to the bank president had reference solely to the debts of the old firm of McPheely & Co. Again, it does not appear that the precise statement made by the defendant in error to the bank president, nor the substance of it, was ever communicated to the plaintiff in error. The most that can be said is that the cashier of the bank, knowing what statement had been made, deduced from it the conclusion that the defendant in error was “all right,” and communicated this information to the plaint
There is in the record some evidence which tends to show that the defendant in error fraudulently contracted the debt sued, but the evidence is very weak and contradicted at every point. The trial judge decided rightly that the evidence failed to support the charge that the debt was fraudulently contracted.
The plaintiff in error makes the point that the mortgagees held the legal title to the property and the possession of the same, and, therefore, the defendant in error is not in a position to move to discharge the attachment. It would seem that the legal title to chattels mortgaged remains in the mortgagor until divested by a foreclosure of the mortgage and sale of the property. However, it is not necessary to determine that question now, and we do not decide jt. Counsel’s point was before this court in Grimes v. Farrington, 19 Neb., 45, and there decided adversely to his contention, the court saying: “A mortgagor of personal property, upon which an attachment issued against him has been levied, has the right, under the provisions of section 235 of the Civil Code, to resist the attach
Affirmed.