1 Indian Terr. 314 | Ct. App. Ind. Terr. | 1896
(after stating the facts.) 1. It ih urged by appellants (interpleaders below) that the verdict for the appellees is not supported by proof of the issuance and levy of the writ of attachment, such papers not having been offered in evidence. It may be doubted if this objection, if the record sustained it, could inure to the interpleaders’ benefit in this action. They prosecute their claim under section 390, Mansf. Dig. Ark., which enacts: “When a.sheriff shall levy a writ of attachment upon property claimed by a person not a party to the suit, such person may make oath to the property, and the same shall be delivered to him upon his giving bond in favor of the plaintiff [omitting further provisions. ”] Under this statute, the interplea (which is in other jurisdictions known as “intervention”) presupposes the existence and levy of a writ of attachment upon the property claimed. These must be, as they have been held, jurisdictional facts, essential to exist, before the third party
Apart from these considerations, the objection cannot be sustained. The interplea states: "That the property levied on by the marshal in this case is the property of the interpleaders, and they were entitled at the time of the levy of the attachment in this cause to the possession thereof." Appellees deny such ownership. It was, by stipulation agreed that the property in controversy is the same property conveyed by the mortgage introduced by interpleaders, and the same property levied on under the writ of attachment of the Smith-McCord Dry Goods Company against S. M. Perry. The interpleaders gave bond; issue was joined; evidence in.-troduced; instructions requested,-which indicate that the case was tried below solely upon the theory that only the question of the interpleaders' interest in the property was involved. We think, under the circumstances, the parties should be held to their trial court theory. Elliott, App. Proc. §~ 489 etseq.
2. Appellants went to trial without objection before the disposition of the issue between the plaintiffs and defendants as to the rightfulness of the attachment. With this issue interpleaders had nothing to do, and it is not perceived why they should be compelled to await its determination. It is so held in the parent state from which the Arkansas Code is taken. Taylor vs Taylor, 8 Bush (Ky.) 118. See, also, 1 Shinn, Attachm. § 431. In any event, appellants did not object at the trial to proceeding before its disposal, and it is too late to do so now.
3. The jury rendered the following verdict: “We, the jury, impanelled and sworn to try the issues herein, find the issues in favor of the plaintiff. Geo. M. Martin, Foreman. ’ ’ After the jury had been discharged by the court, the court amended this verdict by adding after the word “plaintiff” the words “and against the interpleaders.” The issues the jury were sworn to try, and the only issues actually tried
4. The court charged: “(5) If you should find in this case that the defendants, at the time they executed the mortgage herein, intended to cheat or hinder or delay creditors and executed the mortgage for that purpose, that alone would not justify you in finding against the interpleaders; but it would be your duty to find in favor of the interplead-ers unless you should find that they took said mortgage with the view and aim to aid and forward the said design of cheating or hindering or delaying creditors. (6) If you should find that the makers of said mortgage, at the time of making the same, made. it for the purpose of cheating 'or hindering or delaying creditors, and as to either of the interpleaders it should not be proven to your satisfaction by. a preponderance of the evidence that such interpleader participated in the fraudulent design, and took the mortgage with the view and aim to aid and forward such design, it would be. your duty to return a verdict for sucb interpleader. (7) An insolvent debtor has a right to prefer one creditor to another, and he may do so by a mortgage; and other creditors, if the transaction be assailed as fraudulent, must establish fraud of the mortgagor in making and taking the mortgage; and this fraud must be against creditors, and must be in making and taking the mortgage complained of; and proof of other fraudulent acts, either of the mortgagor or mortg gee, not connected with the transaction, would not be sufficient to overturn the mortgage. Fraud is never presumed, but must be proved by a preponderance of the evidence, the presump
.5. The thirteenth paragraph of the court’s charge was as follows: “The instrument relied on as a basis of title by the interpleaders is on its face a mortgage, and purports to convey all of defendant’s choses in action, no .matter where situated, used by defendants in connection with their business. Now, if you find from the evidence that it was the understanding of all parties that the words
6. The badge of fraud referred to by the court in the fifteenth paragraph of the charge was applicable to facts established against the mortgagors. When taken in connection with the paragraphs of the court’s charge heretofore set out, and particularly in connection with the fifth paragraph, it is impossible to believe that the jury could have understood this instruction as applying to the interpleaders. The charge must be considered as an entirety, and it must be assumed that the jury so construed it.
7. Proof was admitted, over objection of appellants, of a sale made by the firm of S. M. Perry on December 26th, to W. C. Brock, of the goods and merchandise of the first-named firm. In the details of this sale, there were circumstances sufficient to justify the inference of a fraudulent intent on the part of S. M. Perry in making such sale. A few days after this transaction, it was rescinded at the instance of the agents of the appellants, and the mortgage upon which they rely in this action was executed in their favor. It is urged that evidence of the first conveyance and the circumstances attending it was not admissible against appel
8. Error is assigned to the action of the court in admitting testimony of J. H. Langley, one of the parties to the mortgage set up by appellants, the effect of which testimony, it is claimed, was the disparagement of the mortgagees’ title by the mortgagors, by declarations subsequent to the execution of the instrument. It is enough to say of this objection that the record does not show that it was presented to tne trial court, and it cannot be raised for the first time here. Railway Co. vs Heck, 102 U. S. 120; Hanna vs Maas. 122 U. S. 24, 7 Sup. Ct. 1055; Newport News Co. vs Pace, 158 U. S. 36, 15 Sup. Ct. 743; Cogswell vs McKeogh, 46 Ark, 524; Railway Co. vs Brown, 49 Ark, 253, 4 S. W. 781; Elliott, App. Proc. §§ 293, 294.
Appellants sought to show by the mortgagors that it was not intended that the choses in action mentioned in the instrument should be included therein. The court did not err in excluding such testimony. Appolos vs Brady, 1 C. C. A. 299, 49 Fed. 401.
Finding no reversible error in the record, the judgment is affirmed.