Sauer v. BehrSauer v. Behr
During thе years 1888 and 1889, defendant Behr was engaged in the saloon and restaurant business at Ninth and Broadway streets, Kansas City. While so engaged, defendant became indеbted to various parties, and among them to this plaintiff. On the twenty-third day of May, 1889, plaintiff brought suit by attachment against defendant, alleging in the affidavit, among other causes, that the defendant had fraudulently conveyed or assigned his property and effects so as to hinder and delay his creditors. Plea in
I. The main objection here urged by defendant’s counsel seems to be that the testimony did not justify the verdict, аnd, hence, that the trial court erred in refusing to sustain a demurrer to the evidence. As to this we have carefully read the record, and considered the рrinted brief and argument of defendant’s learned counsel, but fail to see any rеason for disturbing the judgment. The evidence not only sustains the verdict and judgment below, but it is difficult to see how any other result could have been reached.
It satisfaсtorily, if not conclusively, appears that several months prior to the levy of this and other attachments defendant Behr executed two separate mortgages covering his entire stock of goods, restaurant and saloon fixtures, and, with the full knowledge and consent of the mortgagees, he was permitted to continue in possession and to sell and dispose of such goods in the usual course of the defendant’s business. That such conveyances were fraudulеnt in law and furnish grounds for attachment, is no longer an open question in this state. Reed v. Pelletier,
Under thе uniform ruling in the courts of this state such mortgages .are considered conveyаnces to the use of the grantor, and, therefore, fraudulent and void as to thе creditors, existing and subsequent, and purchasers. Neither does it matter (as seems to be the contention of defendant’s counsel) whether such mortgages
More than this, the manner in -which these mortgages were taken and held by the defendant’s mortgagees stamps each transaction as one of fraud in fact, so far at least as this defendant is concerned. For •example, the first mortgаge was made in January, 1888, and, by a common understanding between defendant •and the mortgagee, the instrument was withheld from record until May, 1889, when (owing doubtless to the movе of other creditors) the mortgage was filed for record. Defendant requеsted such conveyances be kept from the record for the obvious purpose of securing a financial standing to which he was not entitled; and the mоrtgages were placed on record in May, 1889, at defendant’s request. This secret performance was ■clearly calculated to place the credit and solvency of defendant on a false basis, and to aid him, as it did, in imрosing on this plaintiff and other creditors who gave •defendant credit on the аssumption that this property was unincumbered.
The suggestion made at the oral аrgument by •défendant’s counsel that before such conveyances could be stаmped as fraudulent as to this defendant, it must also appear that the mortgаgees participated in the •defendant’s fraudulent purpose, avails nothing in tbip matter of attаchment against the defendant. Such •doctrine can only be invoked in a suit to rеclaim the property from the mortgagees. In this attachment proceeding the matter at issue is the fraud or good faith of the •attached debtor. If he was guilty of the execution of fraudulent conveyances so as to hinder оr delay his creditors, then attachment will lie under the seventh •clause of section 321, of the attachment law, whether those to whom the property was conveyed were actuated
The judgment in this case was clearly for the right party, and will be affirmed. * J’