"1.
For fifteen years or more, last past, the defendant and Maria
Macdonald have been husband and wife, residing at Atchison
Kansas, with their children, and during said time, up to the
spring of 1879, the defendant was a clerk in the hardware
business. About fourteen years ago, said Maria Mac-dald
received about $ 1,000, as her share of her father's
estate, and part of the same was invested in lots in Atchison
for a homestead, and the title thereto placed in her name.
The homestead was improved in part with said money, and in
part by means derived from defendant's earnings. No
account was ever kept of the money furnished by either, the
making of the improvements and the keeping of the family
being contributed to from the funds of either, which were
used in common--the defendant's earnings being little, if
any, more than sufficient to support his family while he was
a clerk. Some years later she received about $ 1,000 from a
brother, and an eighty-acre tract of land, in this county,
was bought for $ 600. Some lots in Atchison were also bought
in her name, for $ 300. In 1879, or in 1880, she also
received between $ 500 and $ 1,000 from her brother-in-law.
No account was ever kept up to 1882, between the defendant
and his wife, as to the sum or sums furnished by either for
any purpose, but all the investments in real estate, except
one lot, were made in her name.
"2.
About March, 1879, said homestead was sold, and the
defendant, with the consent of his wife, took $ 1,500 of the
proceeds and embarked in the hardware business on his own
account. This was all the capital that he then had, but
between that time and January, 1882, he received $ 1,480
more, being of the proceeds the sale of said eighty-acre
tract, and said lot in Atchison, that stood in his wife's
name, all of which real estate was sold at a large profit,
more than double its purchase price. This aggregate of $
1,480 was received in payment at different times, each of
which was entered upon the cash-book of the business as
received from him, and placed to his credit upon the ledger
of the business. His wife knew that said money derived from
the sale of said homestead and other real estate constituted
his only capital, and that he was using the same in his own
name without any credit to her whatever; and the defendant
made no express promise to pay said money back to his wife,
except as hereinafter stated.
"3.
In 1881, another lot in Atchison was purchased in her name,
with a view of building a residence thereon for a home. Only
$ 50 was paid on the lot, but a contract was entered into
with Cole and Shafer by which they agreed to build a house on
said lot for $ 825, and to take in payment hardware out of
the defendant's store. They proceeded with said building,
and up to January, 1882, they had obtained hardware from the
defendant's store amounting to $ 639.80, but said
building was not completed. Cole and Shafer were debited with
the amount of said hardware.
"4.
In the fall of 1881, the defendant became embarrassed. He had
purchased a large stock, and was indebted therefor about $
10,000. He went east and to neighboring cities where he was
indebted. He was then insolvent, but he misrepresented his
financial condition to his creditors, and procured from most
of them an extension of time.
"5.
Early in January, 1882, the defendant contemplated a failure
in business, and he and his book-keeper set about to save
something for the defendant's wife and family. A journal
and a ledger account was opened with Maria Macdonald, January
6, 1882, and the several sums, aggregating $ 1,480, appearing
in the cash-book as received from A. Macdonald and
journalized and posted to his credit, were also journalized
and posted to the credit of Maria Macdonald, the journal and
entries both stating the dates as in the original entries in
the cash-book, which were not altered, and the journal entry
having an explanatory note to the effect that the original
credits were erroneously made. The amount of Cole and
Sharer's account was also debited to said Maria
Macdonald. At the same time, the said promissory note,
(non-negotiable in form,) for $ 1,500, a copy of which is set
forth in the interplea of J. W. Bailey, was drawn up and
signed by the defendant, and dated back to about the time
that the defendant engaged in business, and his wife made the
indorsement thereon as follows: This note is renewed for two
years more, but with interest.--(Signed) MARIA
MACDONALD.' Said note was intended to cover the amount of
money derived from the sale of said homestead and put into
the business at the beginning, in 1879.
"6.
On January 17, or 18, 1882, said Maria Macdonald went to A.
F. Martin, an attorney at law at Atchison, and handed him
said promissory note and told him she wanted it secured by a
chattel mortgage on the stock of goods of the defendant. At
said time A. F. Martin had in his hands for collection a
claim of the Gibbs & Sterrett Manufacturing Company
against said A. Macdonald, for $ 116.60. Said A. F. Martin,
on or about January 17, or 18, 1882, conferred with said A.
Macdonald, who talked about making a general assignment for
the benefit of his creditors. He however agreed to execute
chattel mortgages securing said claims, and on January 18,
1882, said A. F. Martin drew up the chattel mortgage of that
date to Maria Macdonald, a copy of which (except the
schedule) is annexed to the interplea of J. W. Bailey herein.
A full schedule of the stock was annexed to the original
mortgage. Said mortgage was not signed and executed by the
defendant until the afternoon of January 19, 1882. At the
same time, January 19, 1882, the defendant executed another
mortgage of that date to said Gibbs & Sterrett
Manufacturing Company upon said stock of goods, to secure its
claim. Said mortgage had no schedule thereto, but referred to
the schedule attached to said mortgage to Maria Macdonald.
Both mortgages were handed to said A. F. Martin, and he took
them to the office of the register of deeds of this county
and had the same filed in said office at 5 o'clock P. M.
of said day. The schedule described by items the entire stock
of goods and everything connected with the business, showing
a total valuation of $ 12,357.81; and the defendant had no
other tangible property except household goods and a few
other articles exempt from legal process. But the notes, book
accounts and other choses in action were not included in said
schedule.
"7.
Before the final execution and delivery of said mortgages by
the defendant to the said A. F. Martin for said Maria
Macdonald and the Gibbs & Sterrett Manufacturing Company
respectively, it had been fully agreed between the defendant
and said A. F. Martin that said defendant should make a
general assignment of all his property to said A. F. Martin,
as assignee, for the benefit of all of the defendant's
creditors; and early the next morning, January 20, 1882, the
defendant executed such deed of assignment to said A. F.
Martin, conveying to said A. F. Martin all of defendant's
property, real and personal, including notes, book accounts
and choses in action, and said stock of goods in trust for
the equal benefit of all the defendant's creditors. Said
A. F. Martin filed said deed of assignment in the office of
the register of deeds for record at 9 o'clock A. M. on
said 20th day of January, 1882, and he immediately got the
key of said store from the defendant and took possession of
said stock of goods as such assignee. In fact, the defendant
closed the store on the evening of January 19, 1882, with a
view to said assignment, and did not open it again next
morning, but turned the key over to his assignee.
"8.
About ten days or two weeks after the assignment, said Maria
Macdonald indorsed said promissory note in blank and handed
it to said A. F. Martin, so that it might be used in any way
that was deemed...