The F. Chevalier Co. v. Collins

WILBUR, J. This is a creditor’s bill brought to subject the Hotel Istalia and the personal property therein, standing of record in the name of defendant John L. Collins, to plaintiff’s judgment for $4,927.50 against defendants Bertrand *649 Rhine and Leora B. Rhine. The property in question was purchased hy the payment of eleven thousand dollars and by the giving of a mortgage for eight thousand dollars executed by the three defendants to C. T. Crowell. The defendants testified in effect that defendants Bertrand Rhine and Leora B. Rhine were indebted to defendant Collins, a brother of defendant Leora B. Rhine, in the sum of seven thousand dollars; that Bertrand Rhine inherited three thousand dollars from his mother and paid it to John L. Collins on account of the aforesaid indebtedness; that the defendant Rhine executed the mortgage in question as an accommodation to defendant John L. Collins and in response to the suggestion of the mortgagee. It is claimed by plaintiff and conceded that defendants Rhine at all times involved herein were bankrupt. As the findings of the court are fully supported by the direct evidence of the defendants, we cannot consider the contention of the appellant that the evidence preponderates in his favor. [1] The fact that the defendants Rhine, who were admittedly bankrupt, executed a mortgage gave them no interest in the property in the absence of an agreement to that effect. There was no such agreement. It is claimed that the trial court erred in excluding the findings of the referee in the supplementary proceedings in the action in which th'e judgment was obtained. It appears from the referee’s report that defendant Collins was examined as a witness, but the findings of the referee were in no way binding upon him; moreover, the conclusions of the referee are in accord with the admitted facts, with the single exception of the statement in his report that “Bertrand Rhine transferred and turned over to said John L. Collins the sum of three thousand dollars to invest in said hotel property, and which, it appears, was so invested by said John L. Collins, and which said (nor any part thereof), it appears, has not been repaid by said John L. Collins to said Bertrand Rhine.” The testimony on the trial of this case is also that three thousand dollars was turned over to be invested in the hotel property, but in addition that it was so “transferred” in payment of the prior indebtedness owing by Rhine to Collins. [2] Appellant contends that there was no change of possession of the hotel or its contents within the meaning of section 3440 of the Civil Code, and, hence, that the hotel is liable for the debts of Rhine. Rhine had been in the pos *650 session of the hotel as tenant, first, under the Hotel Istalia Company; second, under Foorman and Woodworth, who sub. sequently became the owners thereof, and later under Collins. The point is without merit; the section relied upon has no application to this case where it is sought to take the property of the landlord to satisfy the debt of the tenant. Judgment affirmed. Sloane, J., and Lennon, J., concurred'.