Masterman v. Lumbermen's National Bank of Stillwater
| Decision Date | 07 June 1895 |
| Docket Number | 9407--(134) |
| Citation | 63 N.W. 723,61 Minn. 299 |
| Parties | W. C. MASTERMAN, Receiver, v. LUMBERMEN'S NATIONAL BANK OF STILLWATER and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Washington county by W. C Masterman, as receiver of defendant R. J. Wheeler, against Lumbermen's National Bank of Stillwater and said Wheeler. E. W. Durant intervened. The case was tried without a jury before Williston, J., who ordered judgment in favor of defendant bank and against plaintiff, and in favor of the intervenor and against defendant bank, as stated in the opinion. From an order denying a motion for a new trial plaintiff appealed. Affirmed.
Order affirmed.
John Day Smith, Young, Fish & Dickinson, and H. J. Horn, for appellant.
Clapp & Macartney, for respondent bank.
J. N Castle and Warner, Richardson & Lawrence, for respondent intervenor.
This was an action to avoid and set aside an alleged unlawful and fraudulent preference said to have been made in February, 1893, to defendant bank by one R. J. Wheeler.
The complaint was in the usual form, alleging Wheeler's insolvency, and the appointment of the plaintiff as receiver under the statute, the insolvent's indebtedness to the bank and to other persons, and that Wheeler, while so insolvent, and with intent to give an unlawful and forbidden preference, did transfer and convey to it as security for its claim a large quantity of real and personal property, the most of it being particularly described and itemized. That defendant had reasonable cause to believe Wheeler to be insolvent when receiving this transfer and the conveyance was also averred. It was also alleged, upon information and belief, that defendant had sold and disposed of part of this property. The relief demanded was that defendant be compelled to transfer and convey said property to plaintiff as receiver, or to account for the same, and if, upon such accounting, it was determined that the property was lawfully held as security for Wheeler's indebtedness, the amount thereof might be ascertained, and that plaintiff might then be allowed to pay and redeem.
The answer denied Wheeler's insolvency, and denied that individually, he was ever indebted to the bank in any sum. It alleged that for many years prior to February, 1893, said Wheeler and E. W. Durant had been engaged as copartners as Durant & Wheeler, principally in lumbering, and all of the time had been indebted to defendant bank; that said firm had been and was perfectly solvent and able to pay its debts; and that the property, and all of the same, described in the complaint and in the transfers and conveyances in question, except one city lot, was, and for more than one year prior thereto had been, copartnership property, and part of the assets of the firm; and that it was transferred and conveyed to the defendant bank to secure the payment of the firm indebtedness then evidenced by past-due promissory notes. It explicitly denied that the defendant had any knowledge of Wheeler's insolvency, and that when receiving the property as security it was with an unlawful intent.
When the cause came on for trial before the court, without a jury Durant was permitted to file a complaint in intervention, to which plaintiff answered. In this complaint many of the material allegations in defendant's answer were reiterated and reaffirmed. It was alleged that for many years prior to the transaction it had been the custom of the firm of Durant & Wheeler to secure the payment of their indebtedness to defendant bank, and that all of this property was partnership property solely, and was transferred and...
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