171 Mass. 74 | Mass. | 1898
This is a.bill in equity, brought by the assignees in insolvency of one Courtemanche, to set aside a mortgage as a preference. The case was tried in the Superior Court, and a decree was made for the plaintiffs. It now is here by appeal on the evidence. It presents only questions of fact.
The petition in insolvency was filed on April 16, 1897. The date of the mortgage is March 1,1897. At that time the mortgagor plainly was insolvent, and knew it. Hyde and South-worth, among other creditors, were pressing him, having stopped-giving him credit about January 16. They do not admit knowledge of Courtemanche’s condition, but their actions and indeed-the admissions that come out in their testimony show very plainly that they knew it. They cannot have failed to know-it. They were a large and intelligent business house, and Courtemanche’s financial reputation was bad. Lee v. Kilburn, 3 Gray, 594. They wanted security, and did not want to take-a mortgage, because they did not think it prudent to do so. They suggested that Courtemanche should find an indorser. This he could not do, until in some way it occurred to him that he might get Hyde and Southworth’s right hand man, who had charge of collecting their bills, one Russell, to indorse -for him, on giving him security for his indorsement.. This plan was put into execution. Courtemanche gave Russell a mortgage of all his property, with exceptions not worth mentioning, and Russell indorsed a six months’ note to Hyde and Southworth. for Courtemanche’s debt. Courtemanche received no other consideration, and his conveyance properly would be found not to have been made in the usual course of business. Peabody v. Knapp, 153 Mass. 242.
According to the testimony, the mortgage was executed before Hyde and Southworth were told about it, Russell was paid
Decree for the plaintiffs.