77 Iowa 586 | Iowa | 1889
The case was tried to the court without a jury, and the court found the following facts :
“(1) That on and prior to April 19, 1886, E. W. Haight and Chas. Haight were partners under the firm name of Haight Bros.
“(2) That said Haight Bros, and one P. J. Whittemore were partners under the name of Haight Bros. & Co.
“(3) That both of said firms did business in the same building, in Oxford Junction, Jones county, Iowa.
“(4) That April 19, 1886, at Maquoketa, Iowa, E. W. Haight for said firms executed chattel mortgages as follows : One to plaintiff for $3,310.39, purporting to secure note to plaintiff for twenty-two hundred dollars, note to Ira Carter for three hundred dollars, and four notes to Dean Bros. & Lincoln for two hundred and seventy-five dollars, $159.63, one hundred and fifty dollars, and one hundred and fifty dollars, respectively, with eight per cent, interest, upon the stock of goods, .books of accounts, notes and accounts, and fixtures, including counters and shelving, also bake-oven, tools and dishes belonging to Haight Bros., — being exhibit A, in evidence; also one chattel mortgage to James E. Arnold for five hundred and twenty dollars, purporting to secure one note for five hundred and twenty dollars, with ten per cent, interest, upon same property, subject to plaintiff’s mortgage, — being exhibit B; also chattel mortgage from Haight Bros. & Co. to I. C. Weed for $1,858.75, purporting to secure one note to said Weed for three hundred and fifty dollars, one for four hundred dollars, one for two hundred dollars to Geo. W. Tubbs, one for one hundred and fifty dollars to D. C., Clary, and the further sum of $1,028.75, on account of borrowed money upon the stock of goods, books of accounts, and accounts and notes, of said mortgagors— being exhibit number 3.
“(5) That at the same time and place said E. W. Haight executed to his wife, B. B. Haight, a warranty*588 deed of house and lot in Maquoketa, being exhibit number 2, for the stated consideration of nine hundred dollars.
“(6) That on February — , 1886, said E. W. Haight executed to Mrs. Indiana Wise, wife of plaintiff, a deed of a house and lot in Onslow, Jones county, Iowa, for the stated consideration of seven hundred dollars, being exhibit-•.
“(7) That said transfers embrace all the property of said firms, and the individual members thereof, and were executed in contemplation of insolvency, which was known to all of said mortgagees.
‘ ‘(8) That at the time of the execution of said chattel mortgages and deed to B. B. Haight, plaintiff, I. O. Weed, E. W. Haight and the attorney who prepared them, were the only persons present; that the items entering into the consideration of the said instruments were fully talked over, and known well to the parties present.
“(9) That Ira Carter and Dean Bros. & Lincoln, named in plaintiff’s chattel mortgage; also Greo. W. Tubbs and D. C. Clary, named in Weed’s mortgage, were neither of them present, nor did they know of their execution, or contemplated execution, until after they were executed.
“(10) That said chattel mortgages were all placed in plaintiff’s hands immediately after their execution, and the same evening brought by him to Anamosa, Jones county, Iowa, for record, and all filed for record at 8:45 o’ clock p. m. of that day, and the recorder directed to mail them to plaintiff at Oxford Junction; that plaintiff then went to Oxford Junction, and on the twenty-first of April took possession of the property described in said mortgages before they were returned to him by the recorder, and on said twenty-first of April, after so taking possession, Haight Bros., by E. W. Haight, transferred and assigned,'‘for value received,’ to plaintiff, all of the books of accounts and accounts and notes named in his mortgage.
*589 ‘ ‘(11) That plaintiff is the father-in-law of said E. W. Haight; that I. C. Weed is the uncle of the Haight brothers, and step-father of said Whittemore; that Jas. C. Arnold is a cousin of the Haight brothers. .
“(12) That plaintiff and said Weed resided in Maquoketa, April 19, 1886.
“(13) That, aside from said claim against Haight Bros., plaintiff is practically insolvent, and was so on April 19, 1886.
“(14) That between April 19 and May 24, 1886, plaintiff sold of said goods seven hundred and two dollars worth, and received the money therefor; that the amount of the notes and accounts so assigned to him was ‘ rising ’ of two thousand dollars.
“(15) That defendant Wilds is sheriff of Jones county, Iowa, and the other defendants are sureties on his official bond; that said sheriff on May 24,1886, levied upon so much of the said stock of goods of said Haight Bros, as is shown by the return on said executions named in the petition, and was notified by plaintiff of his claim of ownership, and said sheriff demanded and received indemnifying bonds of the execution plaintiffs, with sureties approved by him, and filed the same with the clerk, and proceeded to sell sufficient of same property to satisfy said executions, costs and a landlord’s lien, and which he returned fully satisfied.
“(16) That in the taking of the Jas. C. Arnold mortgage the same I. C. Weed acted as the agent of said Arnold.
“(17) That the said Haight Bros., besides the sums secured by said mortgages, were indebted in the sum of between two thousand dollars and three thousand dollars, and were insolvent.
“(18) That the amount of the notes and accounts assigned to plaintiff by Haight Bros., as aforesaid, together with the money received from the sale of goods, exceeds the amount of plaintiff’s claim named in said mortgage.
“(19) That, at and prior to all of said conveyances and transfers, the plaintiffs in said executions were creditors of said Haight Bros.
*590 ‘ ‘(20) That the said conveyances and transfers were not made in good faith, and with the sole object of security primarily, but to accomplish a preference, and place the property beyond the reach of creditors not sustaining friendly and confidential relations with the debtors.
“ As conclusions of law I find:
“(1) That by the acts and intent of the parties at the time of the making said several transfers, the same amounted to a general assignment of the property of said firms, who were insolvent, and were made in contemplation of insolvency, with a view to give a preference to the creditors named, and were not for the benefit of all the creditors of said firms, and hence, invalid.
“(2) That the claim of plaintiff, Wise, by the assignment of the said notes and accounts to him, and appropriation of said money received on sale of goods, was extinguished prior to the levy on the property by the sheriff.
“(3) That judgment should be entered for defendants, which is accordingly done.”
We have examined the record as to the errors assigned, and in some instances, under the issues as presented, we think there was error, both as to admissions and exclusions of testimony. But, looking to the question which we assume as a controlling one, we find nothing which we think could have prejudiced the plaintiff. In fact, we have considered the matter almost, if not entirely, on the conceded facts as to details from which the ultimate fact of the fraud could be found. To consider the separate assignments as to rulings upon the introduction of testimony would extend the opinion to an unreasonable extent, and we think it unnecessary. To our minds the findings by the court have such support in the testimony that, like the verdict of a jury, they are conclusive as to the facts. With the fact of fraud established, the transaction as to plaintiff was void, as found by the district court, and its judgment must be Affirmed.