Bergman v. Jones
| Decision Date | 26 November 1901 |
| Citation | 88 N.W. 284,10 N.D. 520 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County, Glaspell, J.
Action by Herman Bergman and another against Evan M. Jones, sheriff for conversion of mortgaged property. From a judgment in favor of defendant, plaintiffs appeal. Modified.
Judgment affirmed, with costs to respondent.
W. E Purcell and C. L. Bradley, for appellant.
The appellant is entitled to tax costs under § 5579, Rev Codes. Our statute is a copy of § § 304 and 305, New York Code of Civil Procedure, and has been construed. Griffin v. Brown, 35 How. Pr. 372; Ryan v. Doyle, 40 How. Pr. 215. It is not necessary for mortgagees to declare the mortgage due before they demand possession of the mortgaged property from an attaching creditor of the mortgagor. The failure of the attaching creditor to comply with the demand subjects him to liability in trover. McGraw v. Bishop, 85 Mich. 72, 48 N.W. 167. Generally no notice of the mortgagee's election to consider the whole debt due is necessary. His proceeding to enforce the mortgage sufficiently shows his election. Harper v. Ely, 56 Ill. 170; Heath v. Hall, 60 Ill. 344; Hoodless v. Reid, 112 Ill. 105; Johnson v. Van Velsor, 43 Mich. 208; Buchanan v. Ins. Co., 96 Ind. 510; Lowenstein v. Phelan, 17 Neb. 429; Young v. McLean, 63 N.C. 576; Hunt v. Keach, 3 Abb.'s Pr. 204. The warrant under which the marshal seized the property, under § 69 of the bankruptcy act, was void on its face, because the recitals of the conditions on which it was issued showed it to be without jurisdiction. In re Kelley, 91 F. 504. If there had been a proper showing and bond the marshal could not have been authorized to seize the property in controversy for the reason that it was not, at the time of the seizure in the hands of the bankrupts. In re Rockwood, 91 F. 363; In re Ward, 104 F. 985; In re Hultz, 12 Fed. Cas. 864; In re Manahan, 16 Fed. Cas. 569. The evidence was conflicting; the credibility of witnesses was questioned, and the case was properly one for the jury. Carver v. Plank Road Co., 61 Mich. 584; Houck v. Gue, 46 N.W. 280; Russell v. Smith, 23 S.E. 5; Dirimple v. Bank, 65 N.W. 501; Chicago, Etc., Ry. Co. v. Olney, 71 F. 95. If different minds may honestly draw different conclusions from the facts, whether disputed or not, the case should be left to the jury. Stevens v. Pendleton, 85 Mich. 157; Knight v. Towles, 62 N.W. 964; Milne v. Walker, 59 Ia. 186; Smith v. Coe, 55 N.Y. 678; Overton v. Mining Co., 131 Ind. 135; Suiter v. Park Natl. Bank, 53 N.W. 205. The question of intent to secure a preference is one of fact for the jury. Giddings v. Dodge, 1 Dillon, 116; In re Seeley, 21 Fed. Cas. 1007. The bankruptcy court did not have the power to deprive the sheriff of possession summarily. Smith v. Mason, 14 Wall. 419; In re Rockwood, 91 F. 363; In re Kelley, 91 F. 504. Where property has been seized by a court officer, no other court not having a supervisory control, whose process has first taken the property, has a right to interfere with possession. Buck v. Colbuth, 3 Wall. 334; Freeman v. Howle, 24 How. 450; Covell v. Heyman, 111 U.S. 176; Tua v. Carriere, 117 U.S. 201.
McCumber, Bogart & Forbes and Fred B. Dodge, for respondent.
It was not error for the district court to deny costs to plaintiff. Langhram v. Orser, 15 How. Pr. 281; Landsburger v. Magnetic Tel. Co., 8 Abb.'s Pr. 735; Peet v. Warth, 1 Bosw. 653; Pyle v. Hand Co., 1 S.D. 385; Laney v. Ingalls, 5 S.D. 184; Township v. Dow, 4 S.D. 163. The amount claimed in the summons or complaint in the action in the circuit court is not material if the amount recovered is less than $ 50.00, and the justice court would have had jurisdiction of the action if the amount recovered had been claimed in an action in the justice court. Kreuger v. Zirbel, 2 Wis. 173; Alexander v. Hard, 42 How. Pr. 131; Mechl v. Schwieckart, 67 Barb. 599. The rule that the construction of a statute by one state shall be regarded as accompanying the adoption of the statute into another, is not an invariable rule of construction. Ingraham v. Regan, 23 Miss. 213; Little v. Smith, 5 Ill. 402; Rigg v. Wilton, 54 Am. Dec. 419. The mortgage was not valid because it contained no provision that the subsequently acquired property, or property purchased in replenishment, should be covered by the mortgage. Brackett v. Harvey, 91 N.Y. 214; McKay v. Shotwell, 6 Dak. 124. The debts secured by the mortgage were individual debts, and the property mortgaged was partnership property. The mortgage was therefore fraudulent and void. Bates on Partnership, § 586; Heineman v. Hart, 55 Mich. 64; Keith v. Fink, 47 Ill. 272; Patterson v. Seaton, 70 Ia. 689; Cron v. Estate, 56 Mich. 8; Vernon v. Upson, 60 Wis. 418; Keith v. Armstrong, 65 Wis. 225; Meraugh v. Whitkell, 52 N.Y. 146; Wilson v. Robertson, 25 N.Y. 187. The moment there is an adjudication in bankruptcy, and a trustee is appointed, the property of the bankrupt vests in the trustee. This included property subject to a valid mortgage. In re Brooks, 91 F. 508. Its effect upon a judgment is ipso facto to dissolve it. In re Richards, 96 F. 935; In re Francis Valentine Co., 93 F. 953. And notwithstanding a stranger claiming title has made a claim for the property against the sheriff, the sheriff cannot surrender to other than the court. In re Francis Valentine Co., 94 F. 783. The court was justified in treating the mortgage as absolutely void in the face of the adjudication in bankruptcy, because it operated to charge partnership assets with individual liabilities. In re Jones, 100 F. 783. And because it was a preference given to secure a pre-existing debt. In re Wolfe, 98 F. 84; In re Cobb, 96 F. 821.
The plaintiffs seek in this action to recover damages from the defendant, as sheriff of Richland county, for the alleged conversion by him of a stock of general merchandise upon which the plaintiffs claim to have had a mortgage. Their damages are laid at the sum of $ 2,966.81, with interest thereon from the date of the alleged conversion. The facts and proceedings which are essential to a determination of the questions presented on this appeal may be stated as follows The property in controversy, at and prior to its seizure by this defendant, was owned by a copartnership composed of August Bergman and Henry Maack, who were then engaged in the general mercantile business in the village of Lidgerwood, in said county, under the firm name of Bergman & Maack. The chattel mortgage upon which plaintiffs' rights in this action are based was executed by said copartnership on December 16, 1898, and filed in the office of the register of deeds of said county on December 19, 1898, and covered the property in question. On December 22, 1898, the defendant sheriff seized said property under a warrant of attachment in an action pending in the district court of Richland county, wherein Wyman, Partridge & Co. was plaintiff and said copartnership was defendant, upon a debt due from said copartnership amounting to $ 1,367.46, for goods sold and delivered to it by said attaching creditor. On December 29, 1898, the plaintiffs caused a demand to be made upon the defendant for the property covered by their mortgage, and the same was refused. On January 3, 1899, bankruptcy proceedings were instituted in the United States district court for the district of North Dakota against said copartnership, and on the 4th day of January, 1899, a warrant issued out of said court under which the marshal of said court took from the possession of the defendant all of the goods theretofore seized by him as above stated. On January 23, 1899, said firm of Bergman & Maack was adjudged bankrupt, and on February 3, 1899, a trustee was appointed to administer the trust estate; and said trustee, as such, received from the United States marshal the goods in question, for the purpose of administration under the authority of the bankruptcy court. The mortgage upon which plaintiffs base their right of recovery is as follows: ...
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