Greeley v. Winsor
| Decision Date | 04 March 1891 |
| Citation | 1 S.D. 618,48 N.W. 214 |
| Parties | CHARLES A. GREELEY, Plaintiff, v. WINSOR et al. Defendants. |
| Court | South Dakota Supreme Court |
Appeal From District Court, Minnehaha County, SD
Opinion upon rehearing
Wynn & Nock
Attorney for respondent and petitioner for the rehearing.
Winsor & Kittredge, Sioux Falls, SD
Attorneys for Appellants.
Argued Oct, 14, 1890, Opinion filed March 4, 1891
This case was argued and decided at a former term. See 1 SD 117, 45 NW 325. The principal questions presented and argued were: (1) The force and effect of the provisions in the lease for a lien for rent, as against the mortgage creditors, considered in connection with other provisions of the lease; and (2) the jurisdiction of the territorial supreme court, to which this appeal was originally taken, to entertain an appeal from an order overruling a demurrer. The second question was not considered in the opinion of the court; and on that account, more particularly, though not exclusively, a re-argument of the case was allowed. We held that the stipulation for a lien for rent upon the goods, fixtures, and furniture was, in effect, a chattel mortgage; and that the further provision allowing the mortgagor to make sales "in the usual course of retail trade," without any proviso or agreement as to the application of the proceeds, or any part thereof, was a stipulated permission to sell for his own use; and that while such permission did not, in terms, extend to the furniture and fixtures, its legal effect was, as against other creditors, to make such mortgage presumptively fraudulent, not only as to the goods, but as to the furniture and fixtures. It is this holding, that the presumption of invalidity applies to the entire mortgage, and tends to defeat the lien upon the furniture and fixtures, as well as upon the goods, of which respondent complains. In our former opinion we recognized the fact that upon this question different courts had reached directly inconsistent conclusions; but the earnestness and ability with which the contention is again presented induces us briefly to review the question.
Referring to respondent's brief, we do not think Jones, in his work on Chattel Mortgages, intends or undertakes to state the rule, adverse to our former holding, as an established one. He says it "is held," and refers to cases in support from four different states. In the immediately preceding section (350) he says, "In New York and one or two other states" the contrary rule prevails, in support of which he also refers to cases from four different states. In a footnote to Section 351, he quotes from the opinion of Judge Dillon in the Kirkbride Case, 5 Dill, 116, and the same is reproduced in respondent's brief; but this must not be taken as an expression of this learned judge's opinion of what the general law is upon this subject. The case was from Missouri, and the opinion simply states that the courts of that state had settled the question for that jurisdiction, and, in accordance with the established rule in the federal courts, the holding of the state court was followed. The American & English Encyclopaedia of Law (volume 3, p. 187) says: "A mortgage or personal chattels which, under the statutes, is fraudulent and void as to a part of the chattels covered by it, (e. g, as being intended to delay and defraud creditors,) is void altogether;" but in the footnotes cites two cases for, and two against, the proposition. So, in 2 Wait, Act. & Def, p, 191, we find: "It has been held that a mortgage of chattels which is void as to a part of the chattels covered by it, as being given to hinder, delay, and defraud creditors, is void as to the whole;" but recognizes a contrary holding in State v. Tasker, 31 Mo. 445. Wait on Fraudulent Conveyances (section 194) says: "We shall see, presently, that as a general rule a transaction void in part for any cause is entirely void;" and cites in illustration Russell v. Winne, 37 N.Y. 591. And again, in Section 434: "And as a general rule a deed which is fraudulent in part as to creditors will be declared void in toto." In Bump on Fraudulent Conveyances (page 486) it is said: "If a mortgage is made with the intent to secure a part of the property to the mortgagee, and to cover the residue for the use of the debtor, it is void as to the whole." "A fraudulent stipulation in a written instrument vitiates the entire instrument." The fact is it is beyond the power or the province of any text-writer to state what the law really is on this particular question, for the courts are in plain and notorious disagreement upon the subject; and we think the authorities, so far as numbers go, do not largely preponderate either way.
But respondent insists that under our statute the fraudulent character of the mortgage as to any part of the property could not be determined by the court on demurrer, as a matter of law. Section 4656, Comp. Laws, so far as it relates to the facts or the question under consideration, reads thus: "Every transfer of property or charge thereon made … with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor." By Section 4659 the question of fraudulent intent is declared to be one of fact, and not of law. This last section, making fraudulent intent a question of fact, is not peculiar to this jurisdiction. It is the same in New York, Wisconsin, Minnesota, Indiana, Michigan, Nebraska, California, and perhaps other states; and there is, I think, nearly an unbroken uniformity in holding that such provision, in the language of Davis, J., in stating the law as held by the Indiana supreme court, "applies to cases of actual or medited and intentional fraud, and is not applicable to written instruments which the law adjudges to be fraudulent on their face, and consequently void." Robinson v. Elliott, 22 Wall, 513. And the courts of these states—Michigan excepted—have not hesitated to declare void, presumptively or conclusively, as a matter of law, instruments which themselves exhibit the fraudulent intent. Edgell v. Hart, 9 N.Y. 213; Russell v. Winne, 37 N.Y. 591; Coleman v. Burr, 93 N.Y. 31; Place v. Langworthy, 13 Wis. 629; Steinart v. Deuster, 23 Wis. 136; Blakeslee v. Rosman, 43 Wis. 116; Williams v. Evans, 6 Neb, 216; Horton v. Williams, 21 Minn. 187; Jenners v. Doe, 9 Ind, 461.
We come again to the old question, is the security clause in the lease, which it is conceded should be treated a chattel mortgage, presumptively fraudulent as to furniture and fixtures, as well as to the goods, the stipulation that the mortgagor might sell in the usual course of trade applying only to the goods. Upon what theory does the law declare the mortgage of these goods invalid? The answer is that it was given with a fraudulent intent,—not, of course, morally, but legally fraudulent, and that because its natural and obvious effect is to hinder and delay other creditors of the mortgagor. When respondent took his mortgage, and therein stipulated that the mortgagor might dispose of a part of the mortgaged property for his own benefit, it was an agreement in advance with the mortgagor that he would not look to nor depend upon such property for his security. The apparent effort and effect was to make it a mortgage as the public, but not as between them-themselves. Under such an agreement the mortgagor might dispose of the bulk of the property, in terms covered by the mortgage, and convert the proceeds to his own use; but if, while such conversion was going on, a creditor should seize any part of it, the mortgagee would stand ready with his mortgage to protect it. The mortgage could not have been intended to, nor did it, give the mortgagee any certain or abiding lien on the goods for the payment of his claim; for it distinctly provided that the goods, apparently pledged for such purpose, might be sold at the will of the mortgagor, regardless of payment made or contemplated, precisely as though there were no mortgage. This, we say, makes the mortgage presumptively fraudulent, because its natural and legitimate effect is a fraud upon other creditors; and, as every man is presumed to intend the obvious result of his own acts, the law presumes that the resulting mischief was contemplated. It is well known that in many of the states such a mortgage is held, in law, conclusively frandulent; but, conscious that there are may cases where kindred provisions, apparently vicious, are not fraudulent in fact,—provisions whose fraudulent complexion may be changed by explanatory and affirmative evidence of good faith, we think the rule best calculated to work justly in the most cases, and unjustly in the fewest, is that such mortgages should be held presumptively fraudulent only, leaving in every case the suspicion which attaches to such a mortgage to be overcome and removed, if it can be, by evidence showing the entire bona fides of the parties in the transaction towards other creditors. But, having adopted such rule, there is the greater reason for making it apply, in a case tike this, to the mortgage in toto; as well to the furniture and fixtures as to the goods. If the mortgage were held conclusively fraudulent, it would be, as to other creditors, as though there were no mortgage, and it would present no shield to protect the property from their attack; but if the mortgage is only presumptively invalid, and may in fact be good, creditors may only approach such property at their peril. The parties to the instrument are the only ones who can know in advance whether it is in fact fraudulent or not. If it is, it is because it was so intended, and in that case no part of it ought to be saved; but if it was in fact given in good faith, and under such circumstances as to purge it of the suspicion of fraud which the law raises, the presumption against its validity may be overcome, and thus the entire mortgage held good. The unfairness of such an instrument towards...
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