Hafelfinger v. Perry
| Decision Date | 04 March 1912 |
| Citation | 52 Colo. 444,121 P. 1021 |
| Parties | HAFELFINGER v. PERRY. |
| Court | Colorado Supreme Court |
Error to District Court, Weld County; Harry P. Gamble, Judge.
Action by James R. Perry against Julius Hafelfinger. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Garbutt Clammer & Sarchet, for plaintiff in error.
Fred W Stow and Frank L. Moorhead, for defendant in error.
In 1908 the defendant below, Julius Hafelfinger, plaintiff in error here, was a tenant upon land of plaintiff below, James R Perry, defendant in error here, under written lease. On May 9th, 1908, Hafelfinger executed to the Northern Colorado Loan Association a chattel mortgage, securing the sum of $1,800 on personal property, including growing crops for the season of 1908 on the land leased from plaintiff. The mortgage was filed for record and duly recorded in the office of the county clerk and recorder on May 12th, 1908, and the money secured thereon was used to take up a mortgage theretofore in force on a portion of the property, and also to pay cropping expenses for that season. On the 29th day of October, 1908 this suit was begun, and on the same day defendant executed another chattel mortgage to one Madden, to secure the payment of $2,600, upon practically the same property that the first mortgage covered, particularly the growing crops upon plaintiff's land. The suit was to recover the agreed rental price of the land. There was no dispute about the amount due, and judgment was rendered in favor of the plaintiff therefor. In order, however, to secure payment of any judgment which he might recover plaintiff, when he began the action, sued out a writ of attachment and had it levied on personal property belonging to the defendant. The averments of the affidavit in attachment were traversed and a hearing had upon the issue thus tendered.
The court found in favor of plaintiff and sustained the writ. It is to review the findings and judgment of the court upon that issue alone that the case is brought here, the judgment recovered being unquestioned.
In the written lease plaintiff expressly reserved a first lien upon all the personal property belonging to defendant, used in and about the premises; and also upon all of the crops grown and to be grown on the land until March 1st, 1909. But despite this fact, and without the knowledge and consent of plaintiff, the defendant executed the chattel mortgage to the loan association on May 9th, 1908, which was presently thereafter recorded in the office of the county clerk and recorder of Weld county, but of which the plaintiff had no actual notice. To keep the plaintiff satisfied and retain his confidence, the defendant, through his wife, some time in July, 1908, Hafelfinger himself being then present, represented that he had no property mortgaged and had no occasion to mortgage any. The plaintiff, being content upon this point, did not record his lease, but relied absolutely upon the good faith of the defendant, believing his lien through the provisions of the lease not only the prior but the only one. The proofs show that on the 29th of October, 1908, Hafelfinger executed a second mortgage to one Madden, and also at the time of the execution of that mortgage he stated that the plaintiff was urging him to give a mortgage to secure the rent of the premises, but he preferred that Madden should have the second mortgage; that he intended to let plaintiff wait until he, Hafelfinger, could secure the money to pay the rent. The offer to execute the mortgage to Madden was voluntary, Madden testifying that he considered he already had enough security, and did not require or request more.
The whole question here is one of fact. If there is testimony to support the proposition that the defendant executed these mortgages for the purpose of hindering or delaying the plaintiff in the collection of his rent, then that gave a ground of attachment, notwithstanding the claims of Madden and the loan company may have been valid and subsisting ones. Nor is it necessary that the purpose of the defendant in giving these mortgages was to actually defraud, and to ultimately defeat the claim of the plaintiff. If his purpose was to hinder or delay, or in any way to injure the plaintiff or interfere with him in enforcing his claim, in any lawful way, a ground of attachment is established. The intent of a person can only be inferred from his acts and statements. The court below, who saw and heard the witnesses, found upon this issue that the purpose of the defendant was to delay and hinder plaintiff in the collection of his debt, and since that finding is supported by competent testimony it will not be disturbed.
The court below said:
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Chaffin, Inc. v. Wallain
...in order to sustain the attachment under C.R.C.P. 102(c). The trial court held that the cases relied upon by Chaffin, Hafelfinger v. Perry, 52 Colo. 444, 121 P. 1021 (1912), and Curran v. Rothschild, 14 Colo.App. 497, 60 P. 1111 (1900), should not be followed since they predate changes in C......
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Fuller v. Stapp
...presumed to be correct, and its judgment will not be disturbed. Davis v. Pursel, 55 Colo. 287, 291, 134 P. 107; Halfelfinger v. Perry, 52 Colo. 444, 447, 121 P. 1021; Lambert v. Scott, 53 Colo. 355, 357, 127 P. 142; v. Hahnewald, 54 Colo. 383, 390, 131 P. 266; Hawkins v. Elston, 58 Colo. 40......
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Roberts v. Dietz
...of whether the bank had knowledge or notice of such intent. The case upon which the trial court based its ruling is Hafelfinger v. Perry, 52 Colo. 444, 121 P. 1021, in which was held that such intent on the part of a mortgagor was ground for attaching his property. In such case, of course, ......
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Roberts v. Dietz, 12696.
... ... them because it took the erroneous view that the case was ... governed by the decision in Hafelfinger v. Perry, 52 Colo ... 444, 121 P. 1021, and that the good or bad faith of the ... defendants was immaterial. Upon the second trial such ... ...