David v. Birchard

Decision Date22 November 1881
Citation10 N.W. 557,53 Wis. 492
PartiesDAVID v. BIRCHARD.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Grant county.

Thomas & Fuller, for respondent.

Hazelton & Provis and Barber & Clementson, for appellant.

COLE, C. J.

The exceptions which are relied on for a reversal of this judgment are those taken to the refusal of the court below to give certain requests as asked by the defendant; also exceptions taken to some portions of the general charge. The plaintiff bases his right to recover the value of the goods in controversy upon a chattel mortgage given him by his brother, J. W. David, bearing date December 14, 1877. The defendant, as sheriff, seized the property under writs of attachment sued out by the creditors of David & Taylor, as they describe themselves in their writs, for goods sold in the fall of 1877. The mortgagor, J. W. David, was confessedly a member of the firm of David & Taylor, if any such firm ever existed. But whether such a partnership ever in fact was formed, so far as the attaching creditors were concerned, was a question much litigated on the trial. The plaintiff asserts that no such partnership existed; that while there was talk and strong expectations on the part of J. W. David that such a partnership would be actually formed during the summer or fall of 1877, yet that the arrangement was really never consummated, because Taylor was a minor, and neither he nor his guardian for him furnished the amount of capital which it was understood he should contribute in order to form the partnership and become interested in the concern. The plaintiff also claims that the mortgage was given to secure a bona fide indebtedness due him from J. W. David for money previously loaned and liabilities incurred; and he further claims that the attaching creditors, when they sold their goods, were informed of the exact state of things about the proposed partnership of David & Taylor.

We will allude to the facts no further than necessary to make plain the application of some of the instructions. The main question in the case was whether the mortgage under which the plaintiff claimed the property was fraudulent and void as to the attaching creditors. As bearing on that question instructions were asked in different forms, some of which were given without qualification. That was the case as to the second and sixth; but most of the instructions were modified or explained by the learned circuit judge. The counsel for the defendant insists that the tendency of these qualifications was to destroy the point of his instructions and create a wrong impression on the minds of the jury as to what facts would render the mortgage fraudulent. We think this criticism as to the effect of the remarks of the learned circuit judge, qualifying some of the instructions asked, is not without foundation. For example, in the third instruction the court was asked to charge that “if the chattel mortgage was given upon the stock by J. W. David, and was taken by C. C. David with the intent to hinder and delay the creditors of J. W. David, it is void, even though the amount named in the mortgage was a valid indebtedness.” To this the circuit judge added these qualifying remarks: “This is true so far as it goes. But if it was given and takcn to secure an honest debt, merely giving the mortgagee a preference, it is not void merely because its effect will be to hinder others from collecting debts on the same property.”

The defendant's counsel insists that the modification really interpolates into the statute a condition wholly antagonistic to its object. He says it is not the honesty of the debt secured by, but the purpose of, the conveyance to which the statute has reference; that an honest debt is an important factor in the transaction; but, if the mortgage was made with the intent to hinder and delay creditors, then it is void though an honest debt be secured by the instrument. This view of the statute is doubtless correct. Section 2320, Rev. St.; Pilling v. Otis, 13 Wis. 495;Smith v. Hardy, 36 Wis. 418. The statute clearly avoids the mortgage if it was made and taken by the parties to it with the intent to hinder and delay the creditors of the mortgagor. But the counsel on the other side say in answer to this view that the circuit judge simply meant in these remarks that a mortgage which secures an honest debt due to the mortgagee is not void merely because other creditors are unable to collect their debts. In other words, that the proper meaning of the instruction, as given, is that a failing debtor may make preferences by securing one creditor and not...

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22 cases
  • Reyburn v. Mitchell
    • United States
    • Missouri Supreme Court
    • June 2, 1891
    ... ... Darby v. Gilligan , 33 W.Va. 246, 10 S.E. 400; ... Caldwell v. Scott , 54 N.H. 414; Roop v ... [106 Mo. 377] Herron , 15 Neb. 73; David v ... Birchard , 53 Wis. 492, 10 N.W. 557; Flack v ... Charron , 29 Md. 311. Some of these authorities hold that ... the transfer of ... ...
  • Sunday Creek Coal Company v. Burnham
    • United States
    • Nebraska Supreme Court
    • October 6, 1897
    ...Atwood, 79 Wis. 1, 47 N.W. 1124; Bannister v. Phelps, 81 Wis. 256, 51 N.W. 417; Barr v. Church, 82 Wis. 382, 52 N.W. 591.) David v. Birchard, 53 Wis. 492, 10 N.W. 557, which decides that 'Where a mortgage is given to an honest debt, but with an intent to hinder, delay, or in any way put off......
  • Excelsior Mill Co. v. Hanover
    • United States
    • Wisconsin Supreme Court
    • February 21, 1899
    ...involved that referred to by the language in support of which the case was cited. The last case cited in the opinion is David v. Birchard, 53 Wis. 492, 10 N. W. 557, which turned on faulty instructions. The power of the members of an insolvent firm, acting bona fide, to use firm property re......
  • Ex parte Hopkins
    • United States
    • Indiana Supreme Court
    • October 9, 1885
    ...297;Atwood v. Impson, 20 N. J. Eq. 156;Baker v. Bliss, 39 N. Y. 70;Parker v. Conner, 93 N. Y. 118;Avery v. Johann, 27 Wis. 251;David v. Birchard, 53 Wis. 492;S. C. 10 N. W. Rep. 557; see Kaine v. Weigley, 22 Pa. St. 179; but an assignee is not affected by the fraud of the assignor unless he......
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