Merchants' Nat. Bank v. Greenhood

• Citation: 41 P. 250,16 Mont. 395
• Parties: MERCHANTS' NAT. BANK v. GREENHOOD et al.
• Decision Date: 22 July 1895
• Court: United States State Supreme Court of Montana

41 P. 250

16 Mont. 395

MERCHANTS' NAT. BANK v. GREENHOOD et al.

Supreme Court of Montana

July 22, 1895

Appeal from district court, Lewis and Clarke county; William H. Hunt and Horace R. Buck, Judges.

Bill by the Merchants' National Bank against Isaac Greenhood and Ferdinand Bohm, copartners, and others, to have an assignment declared fraudulent and removed as an obstruction to an execution. From a judgment for plaintiff, defendants appeal. Affirmed.

A court has power to change its own calendar.

The nature of this action will appear fully by the complaint therein, which pleading we have deemed it best to insert in this statement in full. After the close of the trial, the court allowed the plaintiff to amend its complaint. The complaint, as finally amended under that order, is as follows:

"Now comes the plaintiff, and by leave of court first had and obtained, files this its second amended complaint, and complains on behalf of itself and all others, the judgment creditors of Greenhood, Bohm & Co., who are parties to a certain deed of assignment hereinafter mentioned, and who shall come in and seek relief by and contribute to the expense of this action, and alleges that the subject of this investigation is of common and general interest to all of said creditors under the said deed of assignment. Wherefore the plaintiff sues for the benefit of all, and alleges:

"I. That it is now, and was at all the times hereinafter mentioned, a banking corporation, organized and existing under and by virtue of the banking laws of the United States, and doing business in the city of Helena, Montana and elsewhere.

"II. That the defendants Isaac Greenhood and Ferdinand Bohm are now, and were at all the times hereinafter mentioned copartners, doing business in the city of Helena and elsewhere under the firm name and style of Greenhood, Bohm & Co.

"III. (1) That on the 13th day of February, 1892, an action was duly commenced by said plaintiff against said defendants Isaac Greenhood and Ferdinand Bohm, the copartners hereinabove referred to, doing business under the firm name and style of Greenhood, Bohm & Co., in the district court of the First judicial district of the state of Montana, in and for the county of Lewis and Clarke, in department No. 1 of said court, by the filing of a complaint and the issuance of a summons, for the recovery of a judgment for the sum of $20,000, together with interest thereon at the rate of 10 per cent. per annum from the 27th day of November, 1891, and for the sum of $13,500, with interest thereon at the rate of 10 per cent. per annum from the 19th day of November, 1891, and for the sum of $1,000, with interest thereon at the rate of 10 per cent. per annum from the 16th day of January, 1892, upon certain demand notes made, executed, and delivered by the copartnership of Greenhood, Bohm & Co. to this plaintiff. (2) That on said date a writ of attachment was duly issued in due form in said last-named action, after the issuance of the summons therein, and placed in the hands of the sheriff of Lewis and Clarke county for execution. (3) That on the 15th day of February, 1892, the sheriff, by virtue of the power and authority vested in him as such officer, and under and by virtue of said writ of attachment, did levy upon and seize and take into his possession that certain stock of goods, wares, and merchandise, situate and being in that certain store building on South Main street, in the city of Helena, known and designated as No. 24, and by garnishment levied said attachment upon all the money and other property and effects of said Greenhood, Bohm & Co. in the hands of the defendant Max Kahn, assignee. (4) That thereafter, on the 8th day of April, 1892, judgment was duly rendered and entered in said last named action in said district court, in favor of the plaintiff herein and against said Isaac Greenhood and Ferdinand Bohm, copartners, etc., for the sum of $35,945.48. (5) That thereafter, to wit, on the ___ day of April, 1892, an execution was duly issued on said judgment against the property of said defendants Isaac Greenhood and Ferdinand Bohm, copartners as aforesaid, addressed to the sheriff of the county of Lewis and Clarke, state of Montana, in which county said defendants resided, and was by said sheriff returned as follows, to wit: 'No property to be found in my county to satisfy the foregoing execution, except the property attached herein and embraced in an alleged assignment of Greenhood, Bohm & Co. to Max Kahn, on the 12th day of February, 1892, and except the above garnishments, and I herewith return said execution unsatisfied.'

"IV. That, after the contracting of the indebtedness for which the aforesaid judgment was recovered, the said defendants Isaac Greenhood and Ferdinand Bohm made, executed, and delivered to the said defendant, Max Kahn, a fraudulent, fictitious, and pretended assignment for the benefit of their creditors of all their property, a copy of which assignment is hereto attached, and marked 'Exhibit A,' and made a part of this complaint.

"V. That the said Max Kahn accepted the said pretended, fraudulent, and fictitious trust, and now claims all of the property of the said defendants Isaac Greenhood and Ferdinand Bohm under and by virtue of said fraudulent, fictitious, and pretended assignment, including the property levied upon and seized by the sheriff under said writ of attachment, as aforesaid.

"VI. That said Max Kahn has collected a large sum of money from the assets of said pretended assignors, amounting in all to over the value of $7,000.

"VII. That the said pretended, fraudulent, and fictitious assignment so made and executed by the said Isaac Greenhood and Ferdinand Bohm, copartners under the firm name and style of Greenhood, Bohm & Co., on the 12th day of February, 1892, as aforesaid, was made, executed, and delivered by the said defendants Isaac Greenhood and Ferdinand Bohm for the purpose and with the intent to hinder, delay, and defraud this plaintiff and the other creditors of said copartnership.

"VIII. That said assignment, and the said claim of the said defendant Max Kahn to the property of the defendants Isaac Greenhood and Ferdinand Bohm are fraudulent, fictitious, and pretended, because of the facts hereinafter stated, to wit (1) The want of sufficient description of the property herein attempted to be conveyed, in that the following is the whole of the descriptive part of the said assignment, to wit: 'All and singular his goods, wares, and merchandise, bills, notes, book accounts, claims, demands, accounts, choses in action, evidences of debts, stock, and property, both real and personal, of every name, nature, and description and wherever situated, including the list of stock of boots and shoes, clothing, gent's furnishing goods, notions, whisky, and cigars, and general merchandise, book accounts, notes, etc., of the business carried on by them at their store on Main street, Helena, Montana;' that said defendant copartnership was the owner of real estate at the time of said assignment, situated in the city of Seattle, state of Washington, worth about $4,000, and no such description is made of such real estate that the title to the same could pass to the assignee. (2) That at the time of said assignment said defendant copartnership was the owner of a stock of goods situated in No. 11 Lispenard street, in the city of New York, state of New York, of the value of about $4,500, and no reference is made to said stock of goods in the said assignment, except the general description, 'all property, both real and personal, of every name, nature, and description, and wherever situated.' (3) That the aforesaid imperfect description of the property owned by the defendants at the time of the said assignment was not aided by any schedules of the property attached to the same at the time of the execution thereof or since. (4) That at the time of the execution of said assignment by the defendants Greenhood and Bohm, and long prior thereto, the said defendants were carrying on business in the city of New York, and also in the city of Helena, Montana, under the firm name and style of Greenhood & Bohm in New York, and Greenhood, Bohm & Co. in Helena; that these several names were adopted for convenience in transacting business in said city of Helena, and said city of New York, but that it was one and the same copartnership. (5) That the laws in the state of Washington in relation to the assignment of property for the benefit of creditors provide as follows, to wit: Laws 1889-90, p. 83,--an act relating to estates of insolvent debtors: 'An act to secure creditors a just division of the estates of debtors who convey to assignees for the benefit of creditors. Section 1, No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors, in proportion to the amount of their respective claims. And such assignment shall have the effect to discharge any and all attachments on which judgment shall not have been taken at the date of such assignment; and after payment of the costs and disbursements thereof, including the attorney's fee allowed by law in case of judgment, out of the estate of the insolvent, and claim or claims shall be deemed as presented, and shall have pro rata with other claims, as hereinafter provided. *** Sec. 3. The debtor shall annex to such assignment an inventory, under oath, of all his estate, real and personal, according to the best of his knowledge, and also a list of his creditors, with their post-office addresses, and a list of the amount of their respective demands, but such inventory shall not be conclusive as to the amount of the debtor's...