Riggan v. Wolf & Bro.

Hemingway, J. I. General finding in attachment-Presumption on appeal As the finding of the circuit judge against the appellants, Riggan & Wood, was general, we must presume that he found all facts that he might have found from the evidence, that were necessary to support the general finding. The evidence is sufficient to sustain the finding that the indebtedness from Riggan to Wood was fictitious, or that Wood was interested in the business conducted by Riggan; and, if either had been specially found, we could not disturb it. Upon either state of fact, the execution of the mortgage to Wood would have been a fraud on the creditors of Riggan. It follows that the judgment against Riggan sustaining the attachment and the judgment against Wood on the interplea will be affirmed. The account of Senter & Co. against Riggan was for advances made by them to him; there is nothing in the evidence that casts the shadow of suspicion upon the good faith and validity of that claim. The note secured to them by the mortgage was executed by Riggan to Wood, and by Wood endorsed to them before maturity. They took it as collateral .security for a debt due them by Wood and for advances thereafter to be made by them to Wood and to Riggan and Wood’s brother upon Wood’s guaranty. They made advances in accordance with the agreement, and hold the note ■accordingly. Whether the court below found the fraud to be that the note was for a simulated indebtedness, or that Wood was interested in the business of Riggan, there is no proof that Senter & Co. knew or ought to have known either fact up to the time that the mortgage was executed. It is contended that, if they were ignorant of the facts constituting the fraud, their agent Meadows knew the facts. The evidence does not sustain this contention. He knew that Riggan owed a large sum of money, more than he would probably be able to pay; but knowledge of a large indebtedness is not knowledge that it is fraudulent, and a creditor may in good faith accept paper .as collateral, which he believes the maker will be unable to pay in full. As Senter & Co. acquired the note in good faith before maturity, as security for an existing debt and for advances thereafter made, and now so hold it, it follows that it is a valid demand in their favor which they may •collect or secure as though it were untainted by fraud in its execution. *• A mo'tgage to two per|°nst”aJnbee™¿ other.as ‘° the Again it is contended that, inasmuch as the mortgage 7 o o was executed to secure an indebtedness to Senter & Co. and .another to Wood, and was as to the latter fraudulent, that the taint of fraud affects and vitiates the entire instrument and defeats the claim of Senter & Co. based thereon. Such is not the rule as to mortgagees who have a valid claim and are ignorant of the fraud of the other mortgagee. Bump., Fr. Conv., p. 488; Jones, Chat. Mort., sec. 336; Prince v. Shepard, 26 Mass., 176; Anderson v. Hooks, 9 Ala., 764; Smith v. Post, 1 Hun, 516; Lewis v. Caperton, 8 Gratt., 148; Troustine v. Lask, 4 Baxter, 162. It is also contended that, inasmuch as the mortgage was executed to secure a pre-existing indebtedness, it would not operate as a purchase to defeat existing equities, but could be avoided for fraud of the mortgagor in which the mortgagee did not participate. The appellees had no existing equities; the principle is therefore inapplicable. They acquired their interest in the property after the execution of the mortgage, and that they cannot defeat the claim of the mortgagee for fraud in which he did not participate, is settled law in this State. Hill v. Shrygley, 51 Ark., 56, 3. Assignment for creditors —Trustee, “There was no agreement for the intervention of a trustee, nor were either of the mortgagees answerable for the proceeds of sale to any one except the mortgagor.” The transaction was neither in form nor substance an assignment. Fecheimer v. Robertson, ante, p. 101. 4. Entirety of mortgage. When a mortgage is executed to secure two or more debts, one of which is paid or extinguished in any other way, the entire property, and not an undivided interest therein, is held to secure the unpaid or unextinguished debt, unless the terms of the mortgage manifest a different intent. There is nothing in the mortgage in suit, which has been called to our attention, to make it an exception to the general rule. As there is no evidence to prove that Senter & Co. were guilty of, or participated in, any fraud upon the creditors of Riggan, or that they knew, or had notice of, the fraudulent character of the dealings between Riggan and Wood, the judgment against them upon their interplea will be reversed, and the cause remanded for a new trial thereon.