55 Neb. 424 | Neb. | 1898
' Christian A. H. Von Wasmer was indebted to the Citizens National Bank of Grand Island on a number of notes made or indorsed by him, and on overdrafts, and on No
It is asserted that the mortgage was on its face fraudulent, and this chiefly on the ground that it appeared to have been made for the debtor’s benefit, the defeasance reciting that its purpose was the convenience of the parties, and to enable Yon Wasmer to renew and pay his debt in installments. The finding of the court that there was no fraud is supported by the esdclence, if indeed it-is not the only finding which the evidence would support. A conveyance may indeed be void on its face, but if so it is because it, by its terms or manner of execution, contravenes some positive provision of law or public policy, or because it discloses an actual fraudulent intent so clearly that if the case were before a jury the court would be justified in directing a verdict because no other finding would be sustained. Under our statute fraudulent intent, when conveyances are assailed by creditors of the grantor, is a question of fact (Compiled Statutes, ch. 32, sec. 20), and it must be always so treated. The instruments on their face constitute a mortgage to a trustee to secure the bank, and as a continuing security. They are made without reservation, and merely express the mortgagor’s purpose as being to obtain renewals and to pay in installments. Such a conveyance is not prohibited by law unless made with the intent to hinder, delay, or
On the second question the argument of the Omaha bank is that the Citizens Bank had been made its agent to collect or secure the note held by it, and that it could not, while such agency- existed, secure its own claim to the exclusion of its principal’s. The reply admits that the Citizens Bank held the note of the Omaha bank for collection, but denies that it had any authority to obtain security, and there is no evidence that it had. The only evidence on the point consists of two letters from the Citizens Bank to the Omaha bank. The first is dated November 1,1893, and acknowledges receipt of the note for collection, adding: “We will notify parties to-day. You can see Christ Wasmer in Omaha, as he is stopping there most of the time. Address him in Omaha, care Merchants Hotel.” The other letter is without date, but acknowledges the receipt of a letter of November 14, so that it was written after the conveyance to Hagge. It gives information as to Von Wasmer’s financial condition and advises the Omaha bank not to make expense by employing counsel at that time. We think this proof wholly failed to establish any such state of facts as would estop the Citizens Bank from receiving and asserting its security. The note, so far as appears, was transmitted for collection merely, without special instructions or the Citizens Bank’s assuming any special duty. It does not appear that the Citizens Bank neglected any duty imposed upon it. In the recent case of Dern v. Kellogg, 54 Neb, 560, a collection agent was held liable where it book
Affirmed.