N. Nat. Bank v. Weed

• Decision Date: 17 October 1893
• Citation: 86 Wis. 212,56 N.W. 634
• Parties: NORTHERN NAT. BANK v. WEED ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 212

56 N.W. 634

NORTHERN NAT. BANK

v.WEED ET AL.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Appeal from circuit court, Ashland county; J. K. Parish, Judge.

Action by Northern National Bank against Alfred Weed and Paul Weed, partners as Weed & Co., aided by writ of attachment. From an order vacating the attachment, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that September 4, 1890, and for some time immediately prior thereto, the firm of A. Weed & Co., composed of the defendants, was hopelessly insolvent. That A. Weed & Co., September 4, 1890, executed and delivered to Thomas Bardon and Edwin Ellis instruments to the following effect: (1) A bill of sale in the ordinary form, with the usual warranty, and reciting a consideration of $25,000, for all the lumber and lath piled upon the docks of the Bay Shore Lumber Company at Ashland, and all the logs belonging to them situated at the boom of said company at Ashland and the booms of the Ashland Boom & Canal Company on Bad river, marked as therein designated; also (2) a bill of sale in the ordinary form, with the usual warranty, and reciting a consideration of $50,000, for about four and a half million feet of lumber, about two and a half million feet of logs, about two million shingles, about a half million lath, horses, cattle, and general logging outfit at Ramsay, Mich.; also (3) a warranty deed of their sawmill property at Ramsay, therein described; also (4) an assignment of a real-estate mortgage on the sawmill plant of the Bay Shore Lumber Company at Ashland, executed by that Company to A. Weed & Co., September 4, 1890, for $12,000. That on the same day, and as a part of the same transaction, said Bardon and Ellis executed and delivered to the said A. Weed & Co. the following instrument, to wit: “Know all men by these presents that the bill of sale executed this 4th day of September, A. D. 1890, by A. Weed and Company to Thomas Bardon and Edwin Ellis, on logs and lumber in Ashland county, and the bill of sale by Alfred Weed and Paul Weed for logs, lumber, lath, and shingles, and horses, cattle, and logging outfit on the same date, said property being in Gogebic county, Michigan, both thereto attached, and the deed executed on the same date between the same parties on the sawmill property at Ramsay, Gogebic county, Michigan, on the southeast quarter of the northwest quarter of section 13, township 47 north, of range 46 west, and the assignment of the mortgage from the Bay Shore Lumber Company to A. Weed and Company of $12,000, are given as collateral securities for the payment of notes made or indorsed by said Weed and Company, and held by the First National Bank of Ashland and the Ashland National Bank and the Security Savings Bank, all of Ashland, Wisconsin, to the amount of about $65,000.” That these various instruments were filed and recorded in the proper offices, September 4, 1890. That after the execution and the filing and recording of said several instruments, and on September 4, 1890, the plaintiff began this action against the defendants to recover $10,750, and sued out a writ of attachment pursuant to the statutes, on the ground that the plaintiff had good reason to believe, and verily did believe, that the defendants had assigned, conveyed, disposed of, or concealed, or were about to assign, convey, dispose of, or conceal, their property, or some part thereof, with intent to defraud their creditors. That on the same day, under the writ of attachment issued thereon, a large amount of logs and lumber was levied upon. That the defendants, by way of special answer to the said affidavit and writ of attachment, denied the existence of all the material facts stated in said affidavit, except the alleged liability of the amount thereof. That the plaintiff thereupon elected to take issue with said answer, and at the close of the trial of the issues thus formed the court found as matters of fact that the allegations of said affidavit were not true, and that none of the material facts stated therein existed, except as to the...