51 Neb. 245 | Neb. | 1897
Plaintiffs brought an action against the defendant upon an account for merchandise, an attachment was obtained, and certain property was seized thereunder as belonging to the defendant. A motion to vacate and discharge the attachment was filed, which motion was supported by affidávits and other testimony denying the grounds set up in the affidavit upon which the same was issued, and resisted by testimony submitted by plaintiffs in the form of affidavits, depositions, and oral proofs. Upon the hearing the motion was sustained, and the order dissolving the attachment has been brought to this court for review by appropriate proceedings.
While the affidavit for attachment alleged several grounds for granting the writ, but one of them is relied upon in this court, namely: “That the defendant sold, conveyed, or otherwise disposed of his property with the
It is argued tliat tlie mortgage of Bowen to McGuire is fraudulent and void, because it was tbe first mortgage executed, and covered property largely exceeding in value tbe debt thereby secured. This was tbe only mortgage given on August 7, 1893, all the others being given on tbe succeeding day. Tbe disproportion between tbe value of tbe mortgaged chattels and tbe amount of debt secured does not raise'a conclusive presumption of fraud, but is mere evidence tending to prove fraud, to be considered in tbe light of surrounding circumstances. (Kilpatrick-Koch Dry Goods Co. v. Strauss, 45 Neb., 793; Grand Island Banking Co. v. Costello, 45 Neb., 119; Dayton Spice-Mills Co. v. Sloan, 49 Neb., 622.) It cannot be determined as a matter of law that tbe McGuire mortgage was fraudulent and void. Tbe order dissolving tbe attachment is
Affirmed.