Gregory Grocer Co. v. Young

• Decision Date: 05 May 1894
• Citation: 53 Kan. 339,36 P. 713
• Parties: GREGORY GROCER CO. v. YOUNG et al.
• Court: Kansas Supreme Court

36 P. 713

53 Kan. 339

GREGORY GROCER CO. v. YOUNG et al.

Supreme Court of Kansas

May 5, 1894

Syllabus

Failing debtors gave preference to several of their creditors, over others, by executing mortgages upon their property to satisfy what were shown to be bona fide debts. An unsecured creditor caused an attachment to be levied upon some of the property, upon the alleged ground that the debtors had and were about to dispose of their property for the purpose of defrauding hindering, and delaying their creditors. The district court, upon a hearing dissolved the attachment, and it is held, upon a review of the testimony, that the ruling of the court was not erroneous.

Error from district court, Johnson county; John T. Burris, Judge.

Action by the Gregory Grocer Company against Young & Conboy. An attachment levied by plaintiff was dissolved, and it brings error. Affirmed.

I. O. Pickering and Van Scyckle & Littick, for plaintiff in error.

A. Smith Devinney and S.D. Scott, for defendants in error.

OPINION

JOHNSTON, J.

Young &amp Conboy, retail merchants at Stillwell, became financially embarrassed, and, being pressed by creditors, secured a number of them by the execution of chattel mortgages on their stock of goods, and another was secured by a mortgage upon real estate. On January 13, 1890, the failing firm mortgaged their stock of goods to secure a debt of $1,032 which they owed to the W. B. Grimes Dry-Goods Company, and four days later they secured the claims of three other creditors, amounting to $1,269.30, by a mortgage upon the stock of goods; and, with the consent of the mortgagors, J. W. Crosswhite was put in charge of the mortgaged property as the agent of the mortgagees. On January 20, 1890, the store building and the lots were mortgaged by Young & Conboy to another creditor to secure a claim of $300. On January 17, 1890, the Gregory Grocer Company applied to the failing firm to have their debt, which amounted to $444.97, protected, and to be put upon an equality with the secured creditors; but this request was denied, although there is testimony that Young & Conboy offered to secure the grocer company by a mortgage upon the store building and lots, which were afterwards mortgaged to another creditor; but this security was declined, and the grocer company brought an attachment proceeding, and caused a levy to be made on real estate subsequently mortgaged to another creditor. The grounds for attachment were that the defendants had or were about to dispose of their property with the purpose of defrauding, hindering, and...