163 N.W. 569 | S.D. | 1917
Lead Opinion
This action was brought by respondent, as plaintiff, against one Badker, seeking to recover a judgment upon certain accounts. The First National Bank of Gary and others were made garnishee defendants. H. E. Jones, the appellant, -became a party to this action by intervention, claiming to be entitled to certain moneys then in the hands of said garnishee First National Bank of Gary under and by virtue of an alleged chattel mortgage upon certain personal property securing the payment of a debt of $2,000 from said defendant Badker to the said intervener; the said moneys in the hands of -said garnishee bank being the proceeds of a sale of said mortgaged personal property. It is the contention of the respondent that the said- intervener waived his lien under said chattel mortgage, if any he had, by consenting to a sale of said property by said mortgagor Badker, and also that the said mortgage of the intervener is fraudulent and void- on-the ground that the same was made and entered into for the purpose and with the intent of hindering and delaying the creditors
On the trial of the case the appellant excepted to the following instruction upon the ground that there is no evidence in the case to support such instruction or to entitle the jury to determine whether or not the intervener waived his said mortgage:
“If you do not find that Mr. Jones waived his mortgage, that ■is, consented to a sale, and that the money after the sale be the ■money of Badker, if you should find that he had a mortgage, and you find that he consented to the sale without any reservation whatever, or any agreement that the money should be paid to this bank for him, then he would waive his mortgage.”
Intervener also testified that on the 14th day of February, 1914, Badker gave him a second mortgage covering the same property securing $2,500, but with no new consideration, the agreement between intervener and Badker being that after the sale was over intervener would advance him $500; that after the sale was made and trouble arose, said $500 note, mentioned in said second mortgage, was canceled by intervener. The giving of tire last-mentioned mortgage was a matter independent of the first mortgage, and to the extent of the $500 note - would have been a fraud against the rights of creditors of Badker, but in
The judgment and order appealed from are reversed, and the cause remanded for further procedure.
Concurrence Opinion
(concurring). I am of the opinion that there is some evidence from which the jury was justified in finding that the transaction between Jones and Badker was fraudulent as to the other creditors of Badker, and therefore I am unable to concur in that part of the foregoing opinion holding that there was insufficient evidence to warrant the jury in finding such transaction fraudulent. But it seems clear to me that the trial court committed reversible error in receiving proof of indebtedness owing by Badker to other creditors when knowledge of such indebtedness was not brought home to Jones. It also* seems to me that the trial court committed reversible error in receiving in evidence proof of what it was claimed Badker had stated to one Anderson, which statement was not made in the presence or hearing of Jones, and absolutely no foundation laid that would make such evidence competent as against Jones.
I therefore concur in the result reached by my colleagues.