18 Neb. 450 | Neb. | 1885
In October, 1882, one J. B. Lininger, a son of Elizabeth Lininger and brother of George "W. Lininger, the plaintiffs, was doiijg business at Wymore, in this state, and being in pressing need of money borrowed about $3,000 from George, giving his note therefor payable in 90 days. To secure this note J. B. executed to his brother a chattel mortgage on his stock of goods at Wymore. This mortgage was not filed for record until the 5th day of February,
The plaintiffs by their agents then took possession of the store and goods and began selling the same in payment of the debts due the plaintiffs. Soon after this transfer the defendant, as sheriff of Gage county, levied a number of attachments, in the aggregate about $3,000, in favor of creditors of J. B. Lininger, on the goods in question. The plaintiffs thereupon brought an action of replevin and recovered the possession of the property. On the trial of the action in replevin the court found the issues in favor of the defendant and that he had a lien by virtue of the attachment upon the property in question in the sum of $3,385.38.
The principal error relied upon is, that the judgment is against the weight of evidence. There is no claim that the attaching creditors were induced to give J. B. Lininger credit upon the faith of his ownership of the property covered by the mortgage to George W. Lininger, and that if said mortgage had been filed for record they would not have given or extended credit to J. B. Lininger. This plea, in any event, would be available only to subsequent creditors who trusted him on the faith of the property in his possession. But that question does not arise in this case. Nor does the question of the validity of the chattel
Upon the first point it is sufficient to say that all the testimony tends to show that plaintiffs actually loaned to-J. B. Lininger in the aggregate the sum of $4,800. All but about $400 of this sum was in cash, and none of it on the 7th day of February, 1883", had been repaid. The checks of G. W. Lininger on the Omaha National Bank in favor of J. B. Lininger for about $2,600, and in favor of Lininger & Metcalf for about $400 on a debt of J. B.,. due to them, are in the record. It also appears that at that time J. B. represented to his brother that his stock would invoice $12,000 or $15,000. The actual invoice of the stock taken about February 1st, 1883, was $9,663.00 with notes and accounts to the amount of $1,700, and as thebe seems to have been no considerable purchase of stock after the date of this transaction it is apparent that the representations were substantially correct. The amount of the debt to the mother is in effect admitted, and is clearly established by the proof, so that there <; a sufficient consideration'for the purchase.
2d. The mere sale by a party of his stock of goods to a relative is not a badge of fraud. Copis v. Middleton, 2 Madd., 410. Wrightman v. Hart, 37 Ill., 123. Dunlap v. Bournonville, 26 Penn. St., 72. Kane v. Drake, 27 Ind., 29. King v. Russell, 40 Tex., 124. If such sales were fraudulent per se it would be impossible for family connections to aid each other in case of financial embarrassment without danger of being placed in a false position and losing the entire sum loaned. Such a rule if adopted
While the plaintiffs have a claim upon these goods for the amount of their debts, other creditors also have rights in the premises that must be protected. It is evident that the value of the goods is nearly sufficient to pay all claims of
Judgment accordingly.