Mower v. Hanford, Thayer & Co.

6 Minn. 535

• Court: Supreme Court of Minnesota
• Decided: December 15, 1861
• Status: Published

Opinion

By the Oourt —

Atwatek, J.

— -Th¿ counsel for the Respondents contends' that this Court has no jurisdiction as to the order of May 25th, directing the delivery of certain personal property, and the order refusing a new trial, on the ground that the appeals from those orders are not in time. In the view taken of the appeal from the judgment,-it is unnecessary to decide whether those orders fall within the 25iA section, Oomp. Stats., p. 673.

It is further contended that on appeal from the judgment, this Court cannot review the order refusing a new trial. The motion for a new trial was heard on a case settled, and which is sent up as a part of the record from the Court below. Sec. 7 of chap. 71, p. 621 Comp. Stats, provides that, “ upon an appeal from a judgment, the Court may review any intermediate order, involving the merits, and necessarily affecting the judgment.” The Defendant, it is true, might have appealed from the order refusing anew trial, before entry of judgment. Rut we do not think that he is compelled to this directly, in order to have that order reviewed. I think the order falls within the definition of those reviewable by sec. 7, above cited, and if the record in this Court presents all the facts, so that this Court can determine whether the Judge below erred in his rulings, I see no objection to examining the question on an appeal from the j udgment. If the case is not properly a part of the record, the motion should be to strike the same from the record, and not to dismiss the appeal. This Court, on appeal from the judgment, will examine the errors as shown by the record, and if the same improperly presents matters prejudicial to either party, it may be corrected on cause shown. We do not mean to state, however, that such motion would have been proper in this case. The case appears to have been duly settled and filed, and no objection is made that it is in any respect incorrect in point of fact, and if there has been an irregularity in filing it with the judgment roll, it is rather an error in form than substance.

The order of the 25 th of May, we think, may also be reviewed on the appeal from the judgment, as it involves the merits, (St. John vs. West, 4 How., 332,) and also affects the judgment, since tbe proceeds of tbelogs constitute a prrt of the judgment debt, and are to be paid over to the Plaintiffs as creditors of the Defendants (Jaques vs. Meth. Ep. Church, 17 John., 559.)

The trial of the case was lengthy, and a great number of exceptions are presented by the case, which disclose several errors in the ruling of the Judge who tried the cause. It is deemed unnecessary to examine them in detail, but only some three or four of those deemed most material.

The deeds executed by the Defendants, which this action is brought to avoid on the ground of fraud, were made November' 13th, 1857. Upon the trial of the cause, the Plaintiffs offered in evidence a record of a deed of general assignment from Samuel Burkleo and William H. Mower, to Samuel M. Register, dated November 13th, 1857, conveying certain personal property to Register in trnst, for the payment of their debts. This was received under objection. The Plaintiffs then offered in evidence a judgment roll or record of the District Court, in an action wherein Whitney, Fenno & Co., judgment creditors of Burkleo & Mower, are Plaintiffs, and against Samuel Burkleo and William H. Mower, partners, as Burkleo & Mower and Samuel M. Register, Defendants, dated July 28th, 1859, wherein a jury found said deed of assignment was made with intent to defraud the creditors of Burkleo & Mower. This testimony was offered for the purpose, as stated by Plaintiff’s counsel, of evidencing the intent with which the deeds'specified in the complaint were exec-cuted. This evidence was received under objection.

This evidence was clearly inadmissible. The adjudication in that suit was not only with reference to different subject matter, but between different parties. 4 Cow. and Hill on Phil. Ev., p. 2, and cases cited. I am not aware that this Court has held that an assignment in form, such as was offered in evidence, is void upon its face, and even were such the case, it would not necessarily show a fraudulent intent in fact, al-. though held fraudulent in law. A clause in an assignment authorizing the assignee to sell upon credit, is held to avoid the assignment as a matter of law, although not inconsistent with an actual honest intention on the part of the assignor. If this evidence was admissible at all, it was conclusive against the Defendants, and in any event, taken in connection with the charge, must have been prejudicial to the Defendants.

The Plaintiffs also offered in evidence a bill of sale of certain logs, dated 12th November, 1857, executed by Mower, Elliott & Co. to Samuel M. Register, which was received under objection. The object of this testimony does not clearly appear from the offer, but we are led to infer it was also offered as evidence of the fraudulent intent of the Defendants, in which case we think it was improperly received.

The Plaintiffs, in establishing their case, introduced evidence showing a large indebtedness of the Defendants at the time of executing the deeds mentioned in the complaint, and proving, or tending to prove, their insolvency at that time. The Defendants, on their part, offered to show that, down to the very eve of the transactions complained of, the firm of Burkleo & Mower were paying off and discharging the indebtedness existing, and that within two months anterior to that date, they had paid off debts to the amount of $15,000, and that said payments were made from day to day during the period mentioned, and as fast as moneys could be realized from the assets and sale of the property. This and other evidence to the same end, was rejected by the Court.

Insolvency, concealment of property, appropriating the same to the debtor’s own use, and the like circumstances, may be relevant and material evidence to the issue of fraudulent intent, at the time of the execution of these conveyances. So the opposite of these conditions and acts may have some tendency to show good faith in the debtor. If the Defendants could show that they were applying their available means in discharge of their just liabilities, for a considerable time previous and up to the very time of the conveyances complained of, it would be a circumstance entirely proper for the jury to consider, in forming their judgment of the intent of the transaction. Upon an issue of this kind, it is usually by circumstantial evidence only that the guilt or innocence of a party is established. A party contemplating or having committed a fraudulent act, does not usually acknowledge the fact in words, nor is be allowed to exculpate bimself, by testifying tbat lie did not intend fraud. The Plaintiffs adduce sucb circumstances as they may be able, from which they ask the jury to infer fraud. The Defendant, on the other hand, should be permitted to rebut these circumstances by proving the opposite, or a state of facts inconsistent with a fraudulent intent. Such evidence certainly would not be conclusive, as a debtor might act honestly toward one creditor or set of creditors, and fraudulently towards another; but it is evidence fit in itself for a jury to consider, and the Court erred in holding it entirely irrelevant and immaterial.

The Court charged the jury, among other things, “ that if the jury find from the evidence that any one of the severaj deeds specified in the complaint was made with the intent to hinder, delay, or defraud the creditors of Defendants Burkleo & Mower, then the whole are void as to such creditors, if one transaction.” To which Defendants excepted.

This charge, standing alone, as an abstract proposition, might, perhaps, not be objectionable, though considered with reference to the evidence admitted on the deed of assignment, and the ruling of the Court on that deed, virtually left but one point for the jury to decide, to wit: whether the making of the deeds was one transaction. But the Court proceeded further to charge, “ that if the jury find that the several deeds of conveyance, specified in the complaint, and the deed of assignment in evidence, were in process of preparation at the same time, and executed upon the same day, that then the whole constitute but one act, and are part and parcel of the same transaction.”

The deeds included within the terms of this charge were eleven in number, and to three different parties as grantees, some from Burkleo & Mower, jointly, as grantors, and some from them severally. The proof showed them to have been executed or acknowledged upon the same day, November 13th,, 1857.

We think the Judge was clearly in error, in the charge last above quoted. There is no conclusion of law from th.e facts above stated, that the deeds were all one act, and part of the same transaction. That was a question of fact solely for the jury, and it was error for tbe Court to take it from their consideration. It certainly is not impossible that an individual should not only execute upon the same day, but be preparing at the same time a conveyance for the purpose of defrauding his creditors, and another for the purpose of securing an honest debt. In such case, the two acts could not properly be said to be of “ the same transaction,” the object and end of the one being entirely different from the other. However strong the probabilities may be in favor of the view entertained by the Court, the jury must be the only judges of the fact, and save for the ruling of the Court, they might have found one or more of the deeds not fraudulent.

The Court further charged, “ that if the jury find from the evidence, that if either Samuel Burldeo or William H. Mower, in making any one of the deeds specified in the complaint, intended to hinder, delay or defraud the creditors of the Defendants, Burkleo & Mower, then all the deeds are void as to such creditors.” This charge, standing as it does, as an abstract proposition, is also erroneous. It was in substance telling the jury that if they found that one of the Defendants executed a deed with fraudulent intent, that the law conclusively presumed that the other Defendant executed those made by him with the like intent. There is no such presumption in law, and the charge "was calculated to mislead the jury. And the effect of the whole- charge was to take the main question litigated, that of fraudulent, intent, from the consideration of the jury, to whom it solely belonged.

The complaint prayed that Martin Mower be adjudged a trustee of the value of lands conveyed to him, which were situated in the State of Wisconsin, as the same were at the date of the conveyances, and to pay the amount of the same to such person as the Court might appoint, &c. Upon the 19th of April, 1861, after verdict and before judgment, and pending a stay of Plaintiffs’ proceedings, the Plaintiffs obtained an order for the Defendants to show cause why certain saw-logs, alleged to have been, cut by Martin Mower on the Wisconsin lands, the previous winter, and then being in the State of Wisconsin, should not be delivered to the sheriff of the county of Washington, to be by such officer sold and converted into money, and tbe proceeds brought into Court, to abide the event-of the action, &c. Upon the hearing of the same the order was made absolute, and it was ordered that the timber be delivered into the custody of the Court, and be disposed of under the order of the Court, and the proceeds brought into Court to abide the event of the action.

At the time this order was made the title of the lands was in the Defendant, Martin Mower, and indeed, it does not appear from the complaint that it was sought to divest him of the legal title, by the judgment of the Court, but that he should hold the same as trustee for the Plaintiffs. Had the judgment of the Court been pronounced in accordance with the prayer of the complaint, Mower would have been declared trustee, for the purposes named imthe complaint. Had he occupied such position, and been duly appointed trustee, (and this view of the case is most favorable to the Plaintiffs,) it will not be contended that the Court could, of its own mo.tion, without due cause shown, or upon the mere request of the Plaintiffs, have taken the property from the trustee and placed it in the hands of the sheriff. The Defendants have an interest in the appointment of the trustee, and in the manner of the discharge of his duties, and he does not act as the agent of the Plaintiffs only. Mower, appointed as trustee under the prayer of the complaint, would have held not only the legal title of the lands, but would have been entitled to receive the rents, issues and profits of the same, or even to sell the same, holding the proceeds for the benefit of the Plaintiffs. He is, of course, subject to the order of the Court, and may be removed or restrained for any abase or improper exercise of the trust reposed in him, or when it is shown that the trust fund is likely to be misapplied or lost in his hands.

We think the affidavits on' which the order was made entirely fail to show any abuse or improper use of the power of the proposed trastee, or any legal evidence that the trust fund was in danger in his hands. It appears from the affidavits that Martin Mower had cut, during the previous winter, a considerable quantity of logs from the lands conveyed to him, and claimed' by Plaintiffs, but as it would seem that he was not deprived of the power to receive the avails of the land, he would not be transcending bis right in so doing; and as the complaint asked that be might be adjudged to pay the value of these lands as they were in 1857, to the Plaintiffs, for aught that appears to the contrary, he might be pursuing the very course to enable him to comply with such order. No charge is made that he was acting in fraud of the Plaintiffs’ rights, or that he was proposing to remove the property beyond the reach of the Court, or convert the same to his own use. The property was in fact at the time without the jurisdiction of the Court, to wit, in the State of Wisconsin, while the affidavits show that “ the logs are now in Apple river, in said county of Polk, and being driven and running into the river and lake St. Croix, in said county of Washington.” There is no allegation whatever that the Defendant was about to sell or dispose of the same; and so far as appears from the affidavits the Defendant was engaged only in removing property to within the jurisdiction of the Court, over which before it had no control. So far as the acts of the Defendant, therefore, are concerned, I do not think the affidavits disclose any facts justifying the interference of the Court.

With reference to the insecurity of the property in the Defendant’s hands, the affidavits are equally defective. All that appears on that subject is contained in th.e. affidavit of W. H. Burt, Esq., and is in the following language, viz : “And that deponent knows much of the pecuniary circumstances of the said Mower, and that in the judgment of this deponent the said Mower is not of such pecuniary condition as to leave secure the lights and interests of the Plaintiffs in said action, if the said Mower is permitted to keep, remove, and convert to his own use the said timber.”- It is not stated- or claimed that Mower was insolvent, or approaching insolvency, or that he had incurred any liabilities whatever, nor that he was of limited means. He might, for aught that appears, have been worth a hundred thousand dollars, clear of incumbrance, within the jurisdiction of the Court, and the affidavit have been true, since the deponent only states that, in his judgment, the Defendant was not of such pecuniary condition as to leave the interests of the Plaintiffs secure. It will scarcely be contended, that such an opinion was any legal evidence, — tbe statement of any facts authorizing tbe Court to interfere. To take property from tbe possession of a party legally entitled thereto, in such a summary manner, would lead to tbe most dangerous consequences.

Tbe order was also erroneous, in ordering tbe property to be sold, without any facts whatever appearing indicating tbe propriety or necessity therefor. Pacts may indeed have existed, (if it be admitted that tbe Court was justified in trans-fering tbe possession of the property) why the same should be-immediately sold and converted into money, but the Court cannot take judicial notice of them, and they not appearing in any manner from the record, the property should have been retained to abide the event of the suit.

This view of the case renders it unnecessary to examine the jurisdictional question, as to the power of the Court to order the transfer of personal property, not within the State. The order being erroneous on other grounds, should be reversed.

We think the judgment below should be reversed and a new trial granted.