Dayton Spice-Mills Co. v. Sloan

• Decision Date: 18 November 1896
• Docket Number: 6406
• Parties: DAYTON SPICE-MILLS COMPANY v. WILLIAM G. SLOAN ET AL
• Court: Nebraska Supreme Court

68 N.W. 1040

49 Neb. 622

DAYTON SPICE-MILLS COMPANY v. WILLIAM G. SLOAN ET AL

No. 6406

Supreme Court of Nebraska

November 18, 1896

ERROR from the district court of Douglas county. Tried below before SCOTT, J.

AFFIRMED.

Horton & Blackburn, for plaintiff in error:

The court erred in sustaining the motion of defendants to dissolve the attachment. (Gans v. Thompson, 11 Ohio St. 580; Harrison v. King, 9 Ohio St. 388; Seidentopf v. Annabil, 6 Neb. 524; Monteith v Bax, 4 Neb. 171; Weir v. Bell, 3 Ex. Div. [Eng.] 238.)

References as to invalidity of the gifts: 8 Am. & Eng. Ency. of Law 1320; Flanders v. Blandy, 12 N.E. 321 [O.]; Jackson v. Twenty-Third Street R. Co. 88 N.Y. 520; Matthews v. Hoagland, 21 A. [N.J.] 1054; Brittain v. Crowther, 54 F. 295; Seitz v Mitchell, 94 U.S. 580; McAnally v. O'Neal, 56 Ala. 299; Clinton Station General Merchandise & Mfg. Co. v. Hummell, 25 N.J.Eq. 45; Cramer v. Reford, 17 N.J.Eq. 367; Hamill v. Henry, 69 Iowa 752; Triplett v. Graham, 58 Iowa 135; Goldsmith v. Fuller, 30 Neb. 569; Swartz v. McClelland, 31 Neb. 646.

The security given was so excessive as to constitute a ground of attachment. (Morse v. Steinrod, 29 Neb. 108; Brown v. Work, 30 Neb. 800; Hershiser v. Higman, 31 Neb. 531; Thompson v. Richardson Drug Co. 33 Neb. 714; Grimes v. Farrington, 19 Neb. 44.)

The attachment affidavit was not properly traversed. (Hanson v. Doherty, 25 P. 297 [Wash.]; Bliss, Code Pleading, secs. 315, 332.)

A gift from husband to wife is subject to the debts of the former, though the debts were contracted subsequent to the making of the gift. (May v. May, 9 Neb. 19; Gamber v. Gamber, 18 Pa. 363; Keeny v. Good, 21 Pa. 349; Walker v. Reamy, 36 Pa. 410; Bradford's Appeal, 5 Casey [Pa.] 513; Aurand v. Schaffer, 7 Wright [Pa.] 363; Robinson v. Wallace, 3 Wright [Pa.] 129; Switzer v. Valentine, 4 Duer [N.Y.] 96; Glann v. Younglove, 27 Barb. [N.Y.] 480; Woodbeck v. Havens, 42 Barb. [N.Y.] 66; Ryder v. Hulse, 24 N.Y. 372; Connors v. Connors, 4 Wis. 112; Elliott v. Bently, 17 Wis. 591; Edison v. Hayden, 20 Wis. 715; Duncan v. Roselle, 15 Iowa 501; Cramer v. Reford, 17 N.J.Eq. 367; Bergey's Appeal, 60 Pa. 408; Paine v. Mason, 7 Ohio St. 207; Day v. Munson, 14 Ohio St. 491; Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74; Rawson v. Pennsylvania R. Co. 2 Abb. Pr. n. s. [N.Y.] 220; Knapp v. Smith, 27 N.Y. 279; Darby v. Callaghan, 16 N.Y. 71.)

Breckenridge & Breckenridge, contra:

Plaintiff did not establish a ground of attachment. An action can be maintained on a claim not due only in the exceptional cases enumerated in section 237 of the Code. (Caulfield v. Bittenger, 37 Neb. 542; Seidentopf v. Annabil, 6 Neb. 524; Harrison v. King, 9 Ohio St. 393; Heidenheimer v. Ogborn, 1 Dis. [O.] 351.)

The attachment cannot be sustained because of excessive security. (Whitney v. Levon, 34 Neb. 443; First Nat. Bank of Denver v. Lowrey, 36 Neb. 290; KilpatrickKoch Dry Goods Co. v. McPheely, 37 Neb. 800; Jones v. Loree, 37 Neb. 816.)

The gifts were executed at a time when the donors were solvent, and they had the right to make provision for their wives. (Sexton v. Wheaton, 8 Wheat. [U.S.] 227; Kehr v. Smith, 20 Wall. [U.S.] 31; Jones v. Clifton, 101 U.S. 225; Morse v. Raben, 27 Neb. 145; Second Nat. Bank v. Merrill v. Houston Iron Works Co. 50 N.W. 505 [Wis.].)

The gifts were perfected by actual delivery. (Flanders v. Blandy, 12 N.E. 321 [O.]; Matthews v. Hoagland, 21 A. [N.J.] 1054; Camp's Appeal, 36 Conn. 88; Davis v. Ney, 125 Mass. 590; Crittenden v. Phoenix Mutual Life Ins. Co. 41 Mich. 442.)

The notes were not barred by the statute of limitations. (Barnett v. Harsbarger, 105 Ind. 410; Dice v. Irvin, 110 Ind. 561.)

The indebtedness to the wives was valid, and they had a right to security. (Ward v. Parlin, 30 Neb. 376; Hill v. Bowman, 35 Mich. 191.)

A voluntary settlement in favor of a wife and children is not to be impeached by subsequent creditors on the ground of its being voluntary. (Webb v. Roff, 9 Ohio St. 430; Fullington v. Northwestern Breeders' Ass'n, 51 N.W. 475 [Minn.].)

Reference was also made to the following cases: Cox v. Peoria Mfg. Co. 42 Neb. 660; First Nat. Bank of Omaha v. Bartlett, 8 Neb. 319; Sommermeyer v. Sommermeyer, 61 N.W. 311 [Wis.]; Oberfelder v. Kavanaugh, 29 Neb. 427; Farwell v. Cramer, 38 Neb. 61; Melick v. Varney, 41 Neb. 105; McCord v. Krause, 36 Neb. 764; Kilpatrick-Koch Dry Goods Co. v. Bremers, 44 Neb. 863.

OPINION

The opinion contains a statement of the facts and issues.

HARRISON, J.

This action was commenced by plaintiff in the district court of Douglas county against the defendants, on a claim not due. It also filed an affidavit setting forth the statutory grounds authorizing the issuance of an attachment in such action. A writ of attachment was ordered, and was issued and served. Motion to dissolve the attachment was presented and, on hearing, sustained. The attachment was dissolved and the cause dismissed. The plaintiff has prosecuted an error proceeding to this court.

At the time of the hearing of the motion to dissolve the attachment or immediately prior thereto, the plaintiff filed an application for a continuance of such hearing, supported by affidavit. The application was denied, and this action is made the subject of one of the assignments of error. The main tendency of the evidence which it was asserted might be produced, if a continuance was granted, would have been to prove that the defendants had fraudulently contracted the debt in suit; and it would have been incompetent in the present proceeding, this being an action instituted upon a claim before it was due. (Caulfield v. Bittenger, 37 Neb. 542, 56 N.W. 302.) An examination of the record convinces us that there was no error in the refusal to grant a continuance, of which the plaintiff has any just complaint.

It is urged that the statements of the affidavit in attachment were not sufficiently traversed or denied. Whether this was true or not, the question does not appear to have been raised on the hearing in the trial court, and hence will not be considered here. (Dunham v. Courtnay, 24 Neb. 627, 39 N.W. 784.)

The defendants had given, at or about the time of the attachment, certain mortgages to some of their creditors, as security for the payment of their indebtedness to such creditors, which it is claimed was excessive security, and furnished, as a matter of law, ground for sustaining the attachment. The prevailing doctrine of this court on the subject of excessive security is as follows: "The disproportion, if one exists, between the value of chattels mortgaged and the amount thereby secured affords no basis for a presumption of law. It is a matter of evidence to be accorded such weight as in the light of surrounding circumstances it is entitled to receive in the determination of a question of fact." (Grand Island Banking Co. v. Costello, 45 Neb. 119, 63 N.W. 376.) If the evidence had established that excessive security had been given, a point as to which it was conflicting, it would have been but evidence to be considered with the other facts and circumstances bearing on the question of fraud, as a matter of fact. It appears from the evidence that the defendants, on June 21, 1893, and during a number of years prior thereto, were conducting a wholesale grocery business in the city of Omaha, as partners, under the firm name of Sloan, Johnson & Co. On the date mentioned the firm was heavily indebted to various creditors, and, as security for the payment of existing liabilities, executed and delivered to the First National Bank of Omaha a chattel mortgage, the amount which it was given to secure being stated therein as $ 49,576.60; also a similar instrument in favor of the Colorado National Bank of Denver, in the stated sum of $ 30,000; the property included in the two mortgages being all the stock of merchandise belonging to the firm. On the same date there was also assigned to the second of the banks named book accounts of the firm amounting to the sum of $ 15,000, and subsequently more of the book accounts were assigned and parcelled out or delivered to others of the firm's creditors.

On the same date that the said chattel mortgages were executed to the banks, one member of the firm, William G. Sloan, executed and delivered to his wife, Ruth Anna Sloan, a mortgage on his residence property to secure a stated indebtedness in the sum of $ 6,432.81, and the other member of the firm, Jonas P. Johnson, gave his wife, Ella G. Johnson, a mortgage on his residence property in the sum of $ 9,861.31. It appears that the property mortgaged to Mrs. Sloan was worth or valued then at about $ 15,000, and Mr. Johnson's residence at about $ 14,000. It appears that some years prior to the time that the firm embarked in business in Omaha, William G. Sloan had two endowment policies of insurance on his life, which matured and were paid, one May 20, 1886, and the other June 1, 1889. The amount received in payment of the two policies was, in the aggregate, $ 3,087.46. These sums were paid to Mrs. Sloan on the dates we have mentioned, and immediately given to Mr. Sloan, who executed and delivered to his wife promissory notes, payable to her, in sums corresponding to the cash received by him. It was testified that Mrs. Sloan had received from some relatives $ 1,000, which she had loaned to Mr. Sloan. None of the principal or interest of the notes given by Mr. Sloan to his wife had ever been paid, and the whole amount claimed to be due for both principal and interest was the consideration stated in the mortgage given by Mr. Sloan to his wife. It further appeared that Mr. Johnson had an endowment policy of insurance on his life, payable to himself, which was, when paid at its maturity, paid at his request to his wife,...