Brown v. Williams

• Citation: 51 N.W. 851,34 Neb. 376
• Parties: BROWN, SHERIFF, ET AL. v. WILLIAMS.
• Decision Date: 30 March 1892
• Court: Supreme Court of Nebraska

34 Neb. 376

51 N.W. 851

BROWN, SHERIFF, ET AL.

v.WILLIAMS.

Supreme Court of Nebraska.

March 30, 1892.

Syllabus by the Court.

1. Where a referee appointed by the court to hear the evidence and report his findings of fact and conclusions of law within a given time, and the time for filing his report is subsequently extended by the court upon stipulation of the parties until the first day of the next term of court, and the date when the next term convened not appearing from the record, it will be presumed that such report was made within the time designated by the court.

2. Where judgment is entered upon the findings of a referee, and in accordance with his conclusions of law, the evidence not having been preserved by a bill of exceptions, the only question for consideration in this court, upon a petition in error to have said judgment reviewed, is whether the court has correctly applied the law to the facts as found by the referee.

3. A debtor, in failing circumstances and contemplating insolvency, may pay or secure an indebtedness created within nine months prior thereto; and a chattel mortgage executed to secure a bona fide debt created within said time, and which is not tainted with fraud, will not be held void for the reason that such debtor, within a few hours thereafter, makes a general assignment of all his property, including that mortgaged as aforesaid, for the benefit of his creditors.

4. When the word “month” is used in a statute, and there is nothing to suggest a different meaning, it will be construed to mean a calendar month.

Error to district court, Franklin county; GASLIN, Judge.

Action by Amanda M. Williams against Eli Brown and others on the official bond of Brown as sheriff. Judgment for plaintiff. Defendants bring error. Affirmed.J. L. Kaley and A. F. Moore, for plaintiffs in error.

Sheppard & Black, for defendant in error.

POST, J.

This was an action in the district court of Franklin county by the defendant in error against the plaintiffs in error, defendants below, Eli Brown, sheriff, and the sureties on his official bond as sheriff for said county. The cause of action alleged is the taking and selling by said sheriff, as assignee of one S. S. Elder, under a general assignment for the benefit of creditors. of a certain stock of general merchandise and store fixtures which plaintiff below claimed by virtue of a chattel mortgage executed by said Elder. The case, by agreement, was referred to Hon. C. J. DILWORTH, by whom it was tried, and who submitted the following report: “Your referee finds from the pleadings and testimony offered, and the admission of the parties hereto, all of which are of record, the following facts: First. That the firm of A. M. Williams & Co., composed of A. M. Williams, the plaintiff in this case, and C. E. Williams, was, and had for some years been, doing business as merchants in the town of Riverton, Franklin county, Neb., and that on the 2d day of January, 1888, the estimated value of the stock on hand belonging to said company amounted to thirteen thousand dollars, and the debts against said firm were estimated to be eight thousand dollars. Second. That on January 2, 1888, the said firm of A. M. Williams & Co. sold said stock and business to S. S. Elder, and took in exchange therefor the notes of that date, executed by the said S. S. Elder, and payable to the plaintiff in this case, A. M. Williams, as follows, to-wit: One note for $2,456.08, due in two years, with 10 per cent interest; one note for $1,000, due in two years, with 10 per cent. interest; one note for $1,000, due in two years, with 10 per cent. Said S. S. Elder also conveyed real estate to the plaintiff of the estimated value of two thousand dollars, and assumed to pay the debts of the firm to the amount of eight thousand dollars. Third. That after said notes were taken, and during the absence of the plaintiff, said notes were left in the possession of her attorneys Sheppard & Black, to attend to the interests concerning them; that on the 1st day of October, A. D. 1888, at the request of Mr. Black, one of said attorneys, Mr. S. S. Elder made, executed, and delivered to the plaintiff the chattel mortgage marked ‘Exhibit A’ in this case, upon the goods in question, which said mortgage was filed for record on the 2d day of October, 1888, at 9 o'clock A. M.; that possession of the said goods so mortgaged was taken by the mortgagee immediately after said mortgage was executed. Fourth. That after the mortgage was executed, and before the same was recorded, the said S. S. Elder, on the 2d day of October, A. D. 1888, made an assignment of all his goods and chattels (including the goods in controversy) for the benefit of all his creditors. This assignment was drawn by the said Mr. Black, of the said firm of Sheppard & Black, and by him filed for record October 2, 1888, at 9 o'clock 30 minutes A. M. Fifth. That the aforesaid Brown was, at the time when these transactions occurred, the sheriff of said Franklin county, and the other defendants were his sureties, with the bond in the usual form. Sixth. That on the 8th day of October, 1888, the said sheriff, Eli Brown, took possession of said goods without the consent of the said plaintiff, under and by virtue of said assignment, and proceeded to invoice, advertise, and sell the same, and did sell, to the amount and value of ($3,400) thirty-four hundred dollars; that on the 12th day of October, A. D. 1888, the county judge of said county fixed upon October 25, A. D. 1888, as the time of presenting claims against said estate by creditors under the assignment act, and that on that day the said plaintiff, by her attorneys, presented her said claim of $2,456.08 for allowance under the provisions of said assignment. Under the above state of facts, the referee, as conclusions of law and fact, finds: (1) That the said mortgage given on the 1st day of October, 1888, from the said S. S. Elder to the said plaintiff, was made in good faith, to secure a valid debt, and said mortgage is and was a lien upon said property to the amount of the plaintiff's claim therein named. (2) That the said defendants, in taking said property, acted without authority of law, and in so doing became liable to the plaintiff to the amount of her interest in said property. (3) That there was due to the said plaintiff on the 8th day of October, A. D. 1888, from the said S. S. Elder, the sum of $2,456.08, together with interest thereon from January 2, 1888, at ten per cent. per annum, making, in the aggregate, $2,619.86. And that the said plaintiff should have and recover of and from the said defendant the said sum of $2,619.86, together with seven per cent. interest from the said 9th day of October, A. D. 1888. All of which is...