Smith & Crittenden v. Sands
| Decision Date | 29 April 1885 |
| Citation | 23 N.W. 356,17 Neb. 498 |
| Parties | SMITH & CRITTENDEN, PLAINTIFFS IN ERROR, v. JERRY B. SANDS AND LEWIS H. KENT, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Harlan county. Tried below before GASLIN, J.
REVERSED AND REMANDED.
Case & McNeny, for plaintiffs in error.
John Dawson, for defendants in error.
This is an action to recover a judgment for the sum of $ 650 against Kent, who is alleged to be a fraudulent grantee of certain goods belonging to one Sands, by reason of which the plaintiffs were defrauded. A demurrer to the petition was sustained in the court below and the action dismissed. It is alleged in the petition in substance that, on the 18th day of January, 1884, the defendant, Sands, and his co-partner Hullquist, were doing business at Orleans in this state; that during the year 1883 the plaintiffs sold to said firm divers goods, wares, and merchandise, for which said firm, on the 18th of January, 1884, was indebted to the plaintiffs in the sum of $ 503.88; that at the last mentioned date said firm had in their store at Orleans a large and valuable stock of "general merchandise, notions, boots and shoes, and goods and wares of various kinds, and notes, and accounts and credits, the value whereof amounted to about the sum of six thousand dollars;" that on the 21st of January, 1884, said firm confessed judgment in the county court of Phelps county in favor of the plaintiffs, a transcript of which judgment was then duly filed in Harlan county (in which Orleans is situated), and an execution issued thereon, which was returned wholly unsatisfied. That subsequent to the contracting of the debt aforesaid to the plaintiffs, to-wit, on the 18th day of January, 1884, the defendant, Sands, in the name of his firm, executed and delivered to the defendant, Kent, a chattel mortgage upon the stock of goods of said Sands & Co., the expressed consideration in said mortgage being about the sum of $ 2,700, and that said Kent afterwards sold said "goods to parties to plaintiff unknown;" that before the execution of said mortgage said Sands and Kent "combined, confederated, and conspired together against these plaintiffs and other creditors of J. B. Sands & Co., and that in pursuance of the confederation, combination, and conspiracy aforesaid, and to further and carry out the same the said defendant, Jeremiah B. Sands, made and executed in the firm name of J. B. Sands & Co. the chattel mortgage aforesaid to said Kent;" that the real consideration for said mortgage did not exceed the sum of $ 400, and the only purpose of said mortgage was to place said property beyond the reach of plaintiffs, "and convert to the use and benefit of said defendants, in fraud of the rights of plaintiffs the stock of goods, wares, and merchandise aforesaid."
"That said chattel mortgage was accompanied by a written agreement reserving a secret trust for the benefit of said defendant Sands, in fraud of the rights of plaintiffs, whereby the defendant Kent promised to pay over to defendant Sands all sums arising from the sale of said goods over and above the sum of seven hundred dollars." It is also alleged that this writing was kept secret by the parties to it; that the firm of J. B. Sands & Co. is insolvent, and that by means of the chattel mortgage the defendants have obtained the property of Sands and company, and converted the same to their own use, whereby the plaintiffs have been defrauded and prevented from collecting their claim. There are other allegations in the petition to which it is unnecessary to refer. If the allegations of the petition are true there is no doubt the plaintiffs are entitled to recover.
That the fraudulent grantee in possession of the property of the debtor...
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