Leitensdorfer v. Webb

• Decision Date: 31 January 1853
• Citation: 1 N.M. 34
• Parties: EUGENE LEITENSDORFER AND JACOB HOUGHTON,v.JAMES J. WEBB.
• Court: New Mexico Supreme Court

1 N.M. 34

EUGENE LEITENSDORFER AND JACOB HOUGHTON,

v.JAMES J. WEBB.

Supreme Court of the Territory of New Mexico.

Jan. 1853.

On a cession of conquered territory to the conqueror, the laws then in force, whether established by the conqueror or previously existing, so far as they relate to the intercourse and conduct of the inhabitants, remain in force, while those which regulate the political relations of the inhabitants to the sovereign state are changed.

*1 APPEAL from the district court for the first judicial district. The opinion of Mr. Chief Justice Baker sufficiently states the case.

Ashurst and Tully, for the appellants.Smith and Garey, for the appellee. By Court, BAKER, C. J.:

This case comes before us as by appeal from the district court for the first judicial district. On the thirtieth day of June, 1849, the appellee, J. J. Webb, filed in the office of the clerk of the circuit court of Santa Fe county, his petition in the usual form, his affidavit and bond, and sued out a writ of attachment against the lands and tenements, goods and chattels, moneys, effects, and credits of Eugene Leitensdorfer and Jacob Houghton, partners, under the name and style of Eugene Leitensdorfer & Co., to recover the sum of eight thousand two hundred and ninety-seven dollars and ninety-two cents, the amount of a promissory note made by said firm at St. Louis, March 1, 1848, payable to the order of Doan, King & Co. of that place, and by them indorsed to the appellee. The writ of attachment was returned to the October term of the circuit court: “Levied on all the goods, wares, merchandise, books, and credits in the store of E. Leitensdorfer & Co., and now in the possession of C. H. Merritt, sheriff, as per invoice,” etc.

At the October term, 1849, the appellants appeared and filed their demurrer to the petition, which appears to have been the only steps taken in the pleadings in the case in the circuit court. At the September term, 1851, of the United States district court, for the first judicial district, the appellee entered his motion for leave to file the papers of the case in the district court, and that the case be entered on the docket and considered a part of the records of that court, which motion was sustained. At the March term, 1852, the appellants filed their plea under the statute, putting in issue the truth of the affidavit upon which the writ of attachment issued. At the following term a trial of this issue was had, and a verdict was found for the appellee. Upon the trial the appellee introduced as evidence a paper purporting to be a deed of assignment from E. Leitensdorfer to H. N. Smith and Thomas Biggs, of all and singular the goods and wares and merchandise of said E. Leitensdorfer, and of all the property and effects of the late firm of E. Leitensdorfer & Co., for the purpose of paying the creditors of E. Leitensdorfer and E. Leitensdorfer & Co. This deed bears date the eleventh of December, 1848, is signed E. Leitensdorfer and by said Smith and Biggs, and after reciting that said Leitensdorfer, as a partner in the late firm of E. Leitensdorfer & Co. is largely indebted, “and that he wishes to secure his creditors as far as his effects will extend,” proceeds: “he, the said Eugene Leitensdorfer, party of the first part, has this day assigned, etc., his goods, wares, and merchandise, and all his property and effects of the late firm of E. Leitensdorfer & Co., unto H. N. Smith and Thomas Biggs, parties of the second part, *** for the use and benefit of the creditors of E. Leitensdorfer & Co.” The assignees bind themselves to sell and dispose of the property so assigned to them, and to receive and collect all property accounts and debts due the said Eugene Leitensdorfer, and due the late firm of E. Leitensdorfer & Co., and to dispose of the proceeds for the use and benefit of the creditors of E. Leitensdorfer & Co. and Eugene Leitensdorfer in the following manner-that is to say: 1. The clerks and agents now serving in the store-house of Eugene Leitensdorfer are to be paid their wages, and all arrearages due them; then after paying the actual expenses of conducting the business assigned, etc., they, the said Smith and Biggs, are to pay, as the assets are collected or converted into money, all the annexed debts as being those placed in the list of preferred creditors for money borrowed or deposited, or such as Eugene Leitensdorfer may have considered more especially bound to pay, in which are the following: to Lewis and Courtney, nineteen thousand nine hundred and ninety-four dollars and twelve cents; Moodie and Simpson, seventeen hundred and forty-five dollars and fifty cents; to A. Laraux, four hundred and sixty-two dollars and thirty-three cents; and to Henry O'Neil, fourteen hundred and fifty dollars; and all other sums of money due by E. Leitensdorfer, etc., for simple deposits or money loaned without interest; and after which payment of preferred creditors, with all assets collected, they, the said Smith and Biggs, are to pay all the other creditors pro rata until the assets are expended. This assignment was ratified by said Jacob Houghton, as appears by the following writing at the foot thereof, viz.:

*2 Know all men by these presents, that I, Jacob Houghton, do hereby authorize and empower Hugh N. Smith and Thomas Biggs as assignees of Eugene Leitensdorfer & Co., to use my name and sign my name in any way that it may be necessary further to use it in settling up business of the late firm of E. Leitensdorfer & Co.

Given under my hand and seal, this eleventh day of December, A. D. 1848. (Signed)

JACOB HOUGHTON. [SEAL.]

No schedule of the assets assigned or of the conditions was annexed to the deed of assignment. Thomas Biggs, one of the assignees, proved that the assets assigned amounted to about thirty-two thousand dollars; that some four or five days after the assignment an inventory of assets was made out. A rancho of Leitensdorfer was turned over to the assignees, but they had been unable to sell it. Some cattle of Leitensdorfer, on hand at the time, were sold for less than the expense of keeping them, so that a balance had to be paid. Before the assignment Leitensdorfer sent to Chihuahua a considerable amount of merchandise; that of the proceeds thereof he, Biggs, paid out upon orders of appellants about fifty-one thousand dollars. A short time prior to this transaction the appellants had brought from the states merchandise to the amount of between eighty thousand and ninety thousand dollars. Smith states it at about eighty-nine thousand nine hundred forty-four dollars and sixty-six cents; besides an outfit in the way of wagons and teams, estimated at about twenty thousand dollars, making the entire cost nearly one hundred and ten thousand dollars. This outfit was sent back to the states, and was attached at Independence, Missouri, by creditors of appellants. The liabilities of the appellants at the time of the assignment were one hundred and five thousand nine hundred and forty-four dollars and four cents. There were several agents and clerks in the store before the assignment, and many depositors of money, and debts due for money loaned without interest, not named in the assignment. The assignees paid out to creditors upwards of twenty-two thousand dollars, preferred creditors being paid pro rata as money was collected. Agents, clerks, depositors, and creditors named in the deed only were paid. The assignment was made because creditors were pressing the payment of their demands. Smith, one of the assignees, was agent and attorney for several of the creditors, whose demands amounted to some twenty thousand dollars, and threatened to attach the property of the appellants should payment not be made. The books of the appellants, transferred upon the assignment, showed about seventy-five thousand dollars due them, but not above three thousand or four thousand dollars could be collected. The debtors held receipts, offsets, etc. Of the merchandise brought out, about forty thousand dollars' worth were sent to Chihuahua by the witness, leaving about fifty thousand dollars to be accounted for. The assignment was on the eleventh day of December, 1848. Two or three months after the return of witness from Chihuahua, the goods arrived from the states- arrived in June or July of the same year.

*3 Smith, the other assignee, stated that some small depositors, and the clerks and agents, were paid in full. Assignment was made because creditors were urging payment. The assignee, Smith, as attorney for Lewis and Courtney, threatened to sue for them, but agreed to await the return of the Chihuahua adventure. Had threatened before the return of the Chihuahua adventure to attach the appellants' property. The Chihuahua expedition had gone as early as September or October. Understood the amount of goods brought out in the summer of 1848 was eighty-nine thousand nine hundred and forty-four dollars and sixty-four cents. Lewis and Courtney and Moodie and Simpson were preferred as creditors because they had assisted appellants in Independence when they were in difficulty. The deed of assignment was written out to be submitted to some other parties before signing, some short time before its execution. There was some other testimony, but it is not necessary to state it.

Appellants' counsel requested the court to instruct the jury:

1. That as the assignment was the act of Leitensdorfer alone, with which Houghton had nothing to do, the act of one defendant would not authorize an attachment against two, and their verdict must be for the defendants.

2. Also the deed of assignment was not fraudulent in law, and unless the jury find from the evidence that, in fact, at the time of the commencement of this suit, the plaintiff had good reason to believe that the defendants had fraudulently disposed of their property and effects, so as to hinder, delay, or defraud their creditors, they must find for the...