Weil v. Eckard

• Citation: 37 Kan. 696,15 P. 922
• Court: Kansas Supreme Court
• Decision Date: 10 December 1887
• Parties: I. WEIL & CO. v. JOHN W. ECKARD, et al

15 P. 922

37 Kan. 696

I. WEIL & CO. v. JOHN W. ECKARD, et al

Supreme Court of Kansas

December 10, 1887

Error from Pottawatomie District Court.

THE opinion states the nature of the action, and the material facts. Trial by the court, at the June Term, 1885, and judgment for defendants. The plaintiffs, Weil & Co. bring the case to this court.

Judgment affirmed.

L. H Finney, for plaintiffs in error.

D. V Sprague, for defendants in error Trout & Leach.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

John W. Eckard and N. Pettinger, partners as Eckard & Pettinger, were in business, and owned a stock of goods and a store building in Westmoreland, Pottawatomie county. On the 4th day of October, 1884, Pettinger sold out his interest in the partnership to Eckard, the other partner, and took notes of $ 1,225 each, one secured by a chattel mortgage on the stock of goods, and the other by a real-estate mortgage on lot 30 and the east half of lot 29, in Cochran's addition to Westmoreland. The store building was on these lots. At the time of this sale of the interest of Pettinger to Eckard the firm was largely indebted, and from the evidence in the case may be said to have been insolvent. The matter in question here is the real-estate mortgage. It was recorded October 4th, and on the same day was assigned by Pettinger to his son, Vernon Pettinger, who had been in the employment of the firm, and who knew all the circumstances under which it was executed. On the 7th of October he sold and assigned the note and mortgage to Trout & Leach, bankers at Wamego. Vernon Pettinger was indebted at the bank of Trout & Leach, and he was paid by the surrender of his own paper to the amount of $ 800, and he received in addition $ 200 in cash. The paper on which Vernon Pettinger was responsible to Trout & Leach was the paper of the partnership; Trout & Leach knew of the partnership; had dealt with it; knew that this mortgage was on the partnership property, Leach having been at Westmoreland some time before, and examined it, and knew that a mortgage was given in some settlement between the parties; and they knew also that the firm of Eckard & Pettinger were "hard up;" that they carried too much on their books; that they had not money to pay their bills; that Trout & Leach had loaned them money. At the time of the execution and the delivery of the mortgage by Eckard to Pettinger, the firm of Eckard & Pettinger was indebted to the plaintiffs in error in the sum of $ 1,530.23; to Tootle, Hanna & Co., $ 140.72; to another firm, $ 165; to another, $ 1,008.33; to A. J. Gray, $ 300; to A. Grimes & Co., $ 1,093; to Roll, Thayer, Williams & Co., $ 205.78; to Kendall & Emery, $ 700; for which chattel mortgages were given on the stock of merchandise by Eckard, on the 11th day of October. The plaintiffs in error were also secured by a mortgage on lot 30 and the east half of lot 29, the same being the lots on which the store building was situated. The indebtedness of the firm, as shown by this record, including the judgment of Freyschlog of $ 243.33, and the amount due Trout & Leach for which Vernon Pettinger was responsible, say $ 800, amounted to over $ 6,000, exclusive of interest and the costs of litigation. The value of the lots and the store building, and of the entire partnership property, was from $ 4,500 to $ 5,000. The object of this action was to set aside the mortgage made by Eckard to Pettinger, and assigned through the son of Pettinger to Trout & Leach, as fraudulent against the plaintiffs in error, who are creditors of the firm of Eckard & Pettinger, and who have a mortgage on the store property, executed and recorded on the 11th day of October. The case was tried by the court, without the intervention of a jury, and the findings of fact and conclusions of law are as follows:

"1. That John W. Eckard and N. Pettinger, were partners in business at Westmoreland, Pottawatomie county Kansas, under the firm-name of Eckard & Pettinger, up to about the 1st day of October, 1884, at which time the partnership was dissolved, and Pettinger sold all his interest in the partnership property to Eckard.

"2. That lot No. 30 and the east half of lot No. 29, in Cochran's addition to Westmoreland, in Pottawatomie county, Kansas, was a part of the partnership property of said firm of Eckard & Pettinger, and that Pettinger sold his interest therein to Eckard on or about the 3d day of October, 1884.

"3. That on the 3d day of October, 1884, John W. Eckard and Annie E. Eckard his wife executed and delivered to N. Pettinger their promissory note for $ 1,225, a part of the purchase-money of his interest in the partnership property, due eighteen months after date, drawing interest at the rate of ten per cent. per annum from date, and on the same day executed and delivered to said N. Pettinger a mortgage upon said real estate to secure the payment of said note, which mortgage was duly filed for record on the 4th day of October, 1884, at 11 o'clock A. M.

"4. That on the 4th day of ...