Hamilton v. Diefenderfer
| Decision Date | 07 April 1913 |
| Docket Number | 676. 677 |
| Parties | HAMILTON v. DIEFENDERFER |
| Court | Wyoming Supreme Court |
Rehearing Denied July 19, 1913, Reported at: 21 Wyo. 266 at 274.
ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.
Each of the actions was replevin brought by Alf Diefenderfer against L. P. Hamilton. From a judgment in favor of the plaintiff in each case the defendant brought error. The material facts are stated in the opinions.
Affirmed.
Metz & Sackett, for plaintiff in error.
The evidence seems to be undisputed that the indebtedness secured by the mortgage assigned to Diefenderfer had been paid and satisfied prior to the asisgnment, since no evidence was produced to contradict the admissions of John Schmitt, the mortgagor, and Marie Schmitt, the mortgagee, made prior to the assignment. Such admissions were admissible, not only against the party making them, but against subsequent purchasers from such party. (1 Ency. Ev. 510, note 73; Williams v. Judy, 3 Gilm. 282, 44 Am. Dec. 699; Horton v. Smith, 8 Ala. 73.) The burden of proving consideration was upon plaintiff. (Lane v. Starky (Neb.), 18 N.W. 47.) The note and mortgage were executed by husband to wife, and therefore presumed to be fraudulent, it appearing that the husband was insolvent.
It was necessary that Diefenderfer should show a purchase of the note and mortgage in the usual course of business, and that he received the same for a valuable consideration. It was also necessary for him to show that the purchase was made without notice of defendant's claim, or the invalidity of the debt and mortgage. We regard it as clear from the evidence that the assignment was not taken in the usual course of business. Diefenderfer was not a bona fide purchaser. It was not necessary that Diefenderfer should have had notice of any particular equity. A notice of some equity, illegality, defect, or defense is sufficient. (Bank v. Marcy (Ark. ), 95 S.W. 145; Hodson v. Glass Co., supra.) The burden was upon him to show good faith, since the evidence was conclusive as to the payment of the note and mortgage. (Vette v. Sacker, 114 Mo.App. 363, 89 S.W. 360; Hodson v. Glass Co., supra; Loftin v. Hill, supra.)
Enterline & LaFleiche, for defendant in error.
The indorsement and delivery of the Schmitt note to the plaintiff would have carried with it the mortgage securing it without a formal assignment. (Graham v. Blinn, 3 Wyo. 746.) The defendant was not in a position to complain even if it should be assumed that the mortgage assigned to plaintiff had been executed for the purpose of defrauding his existing creditors. The defendant extended credit after the mortgage in question had been executed and he therefore had constructive notice of such mortgage. (Bump on Fraudulent Conveyances, Sec. 462; Gentry v. Lanneau, 54 S.C. 514, 71 Am. St. 814; Wilson v. Stevens, 129 Ala. 630, 29 So. 678, 87 Am. St. 86; Seed v. Jennings (Or.), 83 P. 872; Schreyer v. Scott, 134 U.S. 405, 33 L.Ed. 955; Todd v. Nelson, 109 N.Y. 316, 16 N.E. 360; Cole v. Brown, 114 Mich. 396, 72 N.W. 247; Treblicock v. Big Mo. Min. Co., 9 S.D. 206, 68 N.W. 330; Smith v. Vodges, 92 U.S. 183, 23 L.Ed. 481; Moore v. Page, 111 U.S. 117, 28 L.Ed. 373; Jones v. Clifton, 101 U.S. 225, 25 L.Ed. 908; Hagerman v. Buchanan, 45 N. J. Eq. 292, 14 Am. St. 732.) The authorities cited by counsel for plaintiff in error upon the proposition that the plaintiff was not a holder in due course are not in point, in view of the provisions of Sections 3210, 3214, 3215 and 3217, Comp. Stat. 1910. The meager testimony introduced as to the declarations of Marie Schmitt, who transferred the note and mortgage, is not sufficient to establish that the note and mortgage were invalid or had been paid. A married woman may mortgage, pledge or transfer her own property for the purpose of securing or satisfying her husband's debts. (King v. Hansing (Minn.), 93 N.W. 306; Sigel-Campion L. S. Com. Co. v. Haston (Kan.), 75 P. 1028; Fiske v. Osgood (Neb.), 78 N.W. 124; Hallowell v. Daly (N. J.), 56 A. 234; Holmes v. Hull (Neb.), 70 N.W. 241; Just v. Bank (Mich.), 94 N.W. 200; Goldsmith v. Lewine (Ark.), 68 S.W. 308.)
The defendant in error, Diefenderfer, commenced these two actions against the plaintiff in error, Hamilton, to recover the possession of certain personal property, and for damages for the alleged wrongful taking and detention of the same. The cases involve the same questions and were consolidated for the purpose of trial and were tried to the court without a jury, and in each case the court found that the plaintiff below was entitled to the possession of the property and that he had sustained damages in the sum of ten dollars and rendered judgment accordingly. From those judgments the defendant below brings error. The cases have been submitted together in this court, and one opinion will cover both cases.
The property in question was owned by one John Schmitt, who on February 21, 1907, executed a chattel mortgage thereon to Marie Schmitt, his wife, to secure two notes of $ 500 each, one due January 1, 1908, and the other due January 1, 1909. The mortgage was filed in the office of the County Clerk and duly indexed February 23, 1907. On December 3, 1908, Marie Schmitt assigned the mortgage to Diefenderfer, which assignment was duly filed and indexed on the same day, and at the same time the note due January 1, 1909, was indorsed and delivered by her to Diefenderfer. The consideration as recited in the assignment of the mortgage being one dollar and other valuable considerations. It appears by the evidence that Diefenderfer had, on September 23, 1908, signed a note, as surety for John Schmitt, to the Sheridan National Bank for $ 690, due ninety days after date; and that at the time the note and mortgage were so transferred to him by Marie Schmitt, he agreed with her to pay the note to the Bank on which he was surety for John Schmitt, and that he did pay it on December 11, 1908, before it was due. John Schmitt had absconded a few days before Diefenderfer procured the note and mortgage from Marie Schmitt, and on the day he procured the same he took possession of the mortgaged property, deeming himself insecure. On July 18, 1908, John Schmitt executed a chattel mortgage on the property to the plaintiff in error, Hamilton, to secure a note of that date for $ 600, due Nov. 18, 1908, which mortgage was duly filed and indexed and renewed from time to time by affidavits. A few days after Diefenderfer took possession of the property Hamilton took possession of a part of it and Diefenderfer replevied it, and soon afterwards Hamilton took possession of the balance of it; hence the two suits.
It is not claimed that if the mortgage held by Diefenderfer was a valid and subsisting lien upon the property it would not be superior to the lien of the Hamilton mortgage. The defenses to it pleaded in the answer are, that it was given without consideration; that it was given to hinder, delay and defraud the creditors of John Schmitt; that the notes secured by it had been paid; and that Diefenderfer was not a bona fide purchaser. The first two defenses are not seriously contended for by counsel for plaintiff in error. The note was negotiable in form and by our statute is deemed prima facie to have been issued for a...
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