23 Ind. App. 410 | Ind. Ct. App. | 1899
The appellees brought their action against the appellant to recover possession of a lot of shoes, the complaint (filed on the 2nd of March, 1895) being in the usual form in replevin. Without any order for the seizure of the
The appellant’s motion for a new trial was overruled, and the question as to the sufficiency of the evidence is alone presented here.
On the trial, the parties agreed upon a statement of the evidence, in substance as follows: On the 15th of January, 1898, and for two years prior to that date, John Griffin and Elmer E. Sharp were partners engaged in the business of owning and operating a general store at Eort Branch, Gibson county, Indiana, and were insolvent, but'were buying and selling goods in the regular course of business. At the date above mentioned, the appellees were, and they still continued to be, partners in the wholesalé shoe business at Philadelphia, Pa. On that day, Griffin and Sharp ordered from the appellees the goods described in the complaint, and in response to this order the appellees on the 22nd of January, 1898, shipped said goods to said Griffin and Sharp, on the terms that the same should be paid for by the purchasers in sixty days thereafter in the sum of $268.20. The goods were sold by the appellees to Griffin and Sharp on said terms, and at that time they were, and they still were, of the respective values alleged in the complaint. The goods arrived at Eort Branch, and were received into the store of Griffin and Sharp, on the 27th of January, 1898, and were then opened and placed in the stock of said Griffin and Sharp, , and on sale in their said store, as a part of the general merchandise therein; but they remained in the original cases in which they had been shipped, the lids of the cases having been removed, and the cases having been placed one on another in tiers in the form of. shelves, with the- openings turned outward so as to expose the contents to view; and
On the 31st of January, 1898, Griffin and Sharp executed to the appellant their chattel mortgage, whereby they mortgaged- to him, as trustee, their entire stock of goods, wares, and merchandise, including the goods described in the complaint; and the mortgage provided, among other things, that the appellant, as such trustee, should take immediate possession of the mortgaged property and forthwith sell the same for cash, and with the proceeds pay certain creditors of said firm; and in the mortgage certain of said creditors were named whose aggregate demands against said firm amounted to more than $6,000, and said trustee was thereby directed to pay them in full before paying any other demands against said firm; and the mortgage stipulated that, after paying said creditors, then the residue of said proceeds should be paid pro rata on the demands of certain other creditors of said firm, among whom were named the appellees. Under and pursuant to this mortgage, the appellant, as such trustee, did, on the 31st of January, 1898, take full and absolute possession of said mortgaged property, and he proceeded forthwith to sell the same, as required by the mortgage.
Afterward, on the 10th of February, 1898, the appellees demanded of said trustee that the goods described in the complaint should be returned and delivered up to them, which .said trustee refused to do. On the 28th of February, 1898, the appellant, as such trustee, had sold the whole of said mortgaged property, in accordance with the terms of the mortgage,, and had delivered the whole thereof to the purchasers thereof, who had shipped and removed the whole of said goods from said store and away from Gibson county; and on the 1st of March, 1898, said purchasers paid the
This statement agreed upon by the parties is not to be treated, as counsel for the appellant argues it should be treated, as the statement of facts in a special verdict or in a special finding; but it is to be regarded as the evidence introduced upon the trial, and if, so regarded, it tends to sustain a finding in favor of the appellees, we can not weigh it and decide upon it the issue of fact submitted to the court below for trial without the intervention of a jury. The burden of proof was upon the appellees, and unless it can be said properly that the evidence tended to sustain the complaint in replevin, they were not entitled to recover.
It is a generally accepted and often stated doctrine that, to maintain replevin, the defendant must have been in pos¡session, actual or constructive, at the commencement of the action. Louthain v. Fitzer, 78 Ind. 449; Hadley v. Hadley, 82 Ind. 75; VanGorder v. Smith, 99 Ind. 404; Rose v. Cash, 58 Ind. 278; Penninsular Stove Co. v. Ellis, 20 Ind. App. 491.
Our statute provides that the judgment for the plaintiff, in an action to recover the possession of personal property, may be for the delivery of the property, or the value thereof in case a delivery can not- be had, and damages for the detention. §581 Burns 1894, §572 Horner 1897.
It is not always necessary to the success of the plaintiff-that the property be so situated that the officer may be able to take it from the defendant and deliver it to the plaintiff.
In the evidence submitted to the court below, it appears that the appellant took possession of the mortgaged property, which included the goods described in the complaint, on the 31st of January, 1898, and that he forthwith proceeded to sell the mortaged property, and that on the 28th of February, 1898, he had sold the whole of the mortgaged property and had delivered it to the purchasers thereof, who- had removed it from the county. It does not appear at what date between the 31st of January and the 28th of February he parted with the possession of thé goods described in the complaint. The demand for the return of these goods described in the complaint was rhade on’ the 10th of February, 1898, at which date he may have disposed of them, so
The question of fraud is one of fact; and while it is not necessary that it be established by direct and positive evidence, but may be inferred from circumstances, yet it can not properly be inferred from the mere doing of what one has a legal right to do. The fact that the purchasers were insolvent when the goods were sold and delivered to them, apparently in the regular course of business, and the inference, if it can be properly drawn from the meager evidence, that they knew of their inability at that time to pay all their debts, together with the fact that they mortgaged these goods and others, all constituting their stock of merchandise on hand, as indicated by the evidence, to a trustee, to pay certain presumably hona fide debts, giving greater preference to some of their creditors than others, did not alone warrant a conclusion that the purchase of the goods described in the complaint was fraudulent. Thompson v. Peck, 115 Ind. 512; Levi v. Bray, 12 Ind. App. 9.
The preference of particular creditors by paying or seeuring their claims in full or in unequal ratio., not in an assignment of all the debtor’s property for the benefit of all his creditors, is not in itself fraudulent or void, but is permissible. In the case of preference in a Iona fide general assignment under the statute, the assignment will be upheld,
In Lord v. Fisher, 19 Ind. 7, it is said: “It is an honest disposition of a man’s property to use it in paying or securing an honest debt. * * * It is not, in the eyes of the law, necessarily a dishonest use of a man’s property to convey all he has to pay or secure one debt while he leaves many others unpaid, or unsecured.” See Cushman v. Gephart, 97 Ind. 46, where it is said that when it is attempted to make a general assignment of all a debtor’s property for the benefit of all his creditors, the statute on that subject “must be complied with, or the assignment, without regard to actual fraud, will be held fraudulent and void, but an assignment by a debtor for the benefit of a part of his creditors, in order to be held void, must be actually fraudulent.” This language is quoted in Grubbs v. Morris, 103 Ind. 166, 168, where it is also said that, where there is only a partial transfer, as where a part only of the debtor’s property is conveyed, or where only one creditor is preferred and there is no gen
In Henderson v. Pierce, 108 Ind. 462, it is held that an. insolvent debtor may prefer one or more of his creditors by securing them or by a sale of property to them, if such security be given or such sale be made in good faith; that he can not give such preference while proceeding under the statute relating to voluntary assignments for the benefit of creditors, but that if in so proceeding he has introduced into the deed of assignment requirements which, while not in conflict with some express provision of law, and not requiring that any such provisions of law be disregarded, are nevertheless constructively invalid, as a preference to one or more of the creditors, such assignment, if not actually fraudulent, will stand, while such constructively invalid provision will be nullified and controlled by operation of the statute governing voluntary assignments.
If the instrument designated as a mortgage in the statement of evidence were an assignment made by the insolvents for the purpose of executing a general assignment of all their property in trust, for the benefit of all their bona fide creditors, it would by the terms of the statute be fraudulent and void, because of its not being made as provided for, in the statute. §2899 Burns 1894, §2662 Horner 1897. It does' not appear from the evidence that the certain creditors who were to be paid ratably after certain others had been paid in full were all the creditors other than those who were to be paid in full; and it does not appear that all the assets of the partnership, all its property, rights, and credits, were mortgaged.
An assignment for the benefit of creditors which names the particular creditors for whose benefit it is made is not a general assignment, but is special as to the persons named. Bump on Fraud. Conv. (3rd ed.) 344-5, (4th ed. §320); England v. Reynolds, 38 Ala. 370.
Apart from the provisions of a bankrupt law, and except
If the mortgage to the trustee should be regarded as ineffectual as against the appellees, or if the preferences therein made could not be sustained, the completed sale made by the appellees would not therefore be nullified, and their action to recover possession of the goods would not thereby be aided, the evidence tending to prove that the mortgaging of the goods was not in contemplation when the goods -were delivered to. the firm and the sale was completed, and there being no evidence of actual fraud in the sale.
"Whatever view ought to be taken of the mortgage to the trustee, this action must be sustained, if at all, as an action at law, in replevin, and even if the goods were in the actual or constructive possession of the defendant at the commencement of the action, the plaintiffs’ success would depend upon facts sufficient to set aside the sale apparently regular and bona fide. The judgment is reversed, and the cause is remanded for a 'new trial.
Robinson, J\, took no part in this cause.