39 Neb. 8 | Neb. | 1894
The questions arising in this case are solely incident to an attachment which issued out of the district court of Douglas county against the defendants G. H. Mack & Co., in a certain cause pending in that court, wherein Landauer, Kaim & Streng were plaintiffs. This attachment was levied upon a stock of merchandise which had previously, to-wit, on February 15, 1890, been mortgaged to the several parties hereinafter named, for the security of the payment of the amounts designated as owing to each, to-wit: To the First National Bank of Omaha, $6,908.16; to Eliza
From the testimony it is quite clear that the aggregate amount of the mortgages given on the 15th day of February, 1890, equaled or exceeded the value of the real and personal property mortgaged. It is an established fact upon the evidence that several of the mortgages given on February 15 were given to relatives of G. H. Mack. It is also true that the mortgages to Yan Slyke and McLeod were given'in excess of the amounts due each of these last two named parties, who were, at the time, employes of the firm of G. H. Mack & Co. These mortgages, given for more than the amounts actually due, seem to have been so given rather from mistake, or want of means of fixing the
It is insisted in argument that the fact that many of the mortgages given were to secure payment of sums not due at the date of the mortgages was evidence of bad faith on the part of the mortgagor and mortgagee. We should be loth to infer, as a necessary result from these premises, that such mortgages were fraudulent or invalid, or even that the fact that a mortgage was given for a debt not yet due was evidence of bad faith. Probably, as a matter of fact, mortgages are given oftener to secure sums not due than to secure the payment of claims w’hich have already fully matured.
In respect to the fact that some of these mortgages were given to relatives of G. H. Mack, it is proper to observe that the testimony shows fully and clearly, so as to leave no ground for suspicion, that each relative who received a mortgage only received it for an amount which was actually due and for an indebtedness that was bona fide in all respects. Even had there been a mere question of fact in issue, there was as to this proposition testimony sufficient to sustain this affirmative finding of the court,and such finding would not, therefore, be disturbed. It is not necessary to resort to a mere presumption in favor of the correctness of the finding of fact in respect of this matter, for, upon an examination of all the testimony, we are satisfied that, asan original question, the weight of the evidence was with the finding made by the court, perhaps not expressly made, but such as must have incidentally been found to sustain the result reached. In a ease like that at bar, where the mortgages have been made and recordéd as required by law, and where the mortgagees have taken actual possession, which they are maintaining at the time of the levy of the attachment by a, common agent of such mortgagees, the burden of proof devolves upon the attaching creditor to show that the mortgages were made for the purpose of
A full examination of all the pleadings and evidence, upon which the motion to dissolve the attachment was heard, convinces us that thé district court was right in sustaining the motion to dissolve the attachment, under the rules laid down in the case of Jones v. Loree, 37 Neb., 816, thus stated in the syllabus of said case:
“ 1. Where several chattel mortgages are executed simultaneously for the purpose of securing debts owing by the mortgagor to the mortgagees, the aggregate of such indebtedness not being unreasonably less than the value of the property mortgaged, such mortgages will not be held void merely because no one of such debts is in itself sufficient to justify so great a security.”
“5. An intention to defraud cannot be inferred merely from the fact that a preference was given to a certain creditor.”
The argument of plaintiffs in error seems to be based largely upon the theory that the several mortgages in fact •constituted an assignment by the firm of G. H. Mack & Co. contrary to the terms of the assignment law of this •state. It is true that in Bonns v. Carter, 20 Neb., 566, language was employed by a portion of this court which would seem to justify this contention. of the plaintiffs in error. It is quite clear that the provisions of the •assignment law should not be made to operate more
Affirmed.