Charles W. DeWolf & Son v. Armstrong

46 Kan. 523

Opinion

The opinion of the court was delivered by

Johnston, J.:

This was an action by Charles W. DeWolf & Son to recover from E. M. Armstrong the sum of $147.01. They obtained an order of attachment, alleging that the defendant had sold, conveyed and disposed of his property, with the intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts. After the order of attachment had been issued and served, the defendant filed an affidavit alleging that the grounds alleged for an attachment were untrue, and upon the proofs offered at the hearing of the motion the attachment was discharged.

The case was submitted upon the same testimony as was Furniture Co. v. Armstrong, ante, p. 270. It appears that the debts which were paid and secured by the defendant were bona fide; and it is settled that a debtor in failing circumstances may in good faith prefer one creditor to another, and may transfer and mortgage his property to secure a bona fide debt, although such action may result in depriving other creditors of either satisfaction of or security for their claims. In the case cited the bona fides of the debt and the good faith of the preference have been found, and following the decision in the cited case, there must be an order and judgment of affirmance in this.

All the Justices concurring.