Goodbar v. Locke

Hemingway, J. All errors alleged relate to the trial of the issue upon the affidavit for attachment. The first is, that the conveyance of the land, the two bills of sale and the transfer of the choses in action, taken together, constitute an assignment for the benefit of creditors, which, not conforming to the statute regulating assignments, was fraudulent, and furnished grounds for attachment. The first three instruments purported to convey property directly from debtor to creditor in payment of valid debts, and if 'they were in fact what they purported to be, they did not constitute an assignment in whole or in part. Whether they were in fact what they appeared to be, or were parts of a scheme to assign property in violation of the laws of the State, was a question of fact for the jury ; the law draws from them no conclusion contrary to the verdict. It is next insisted that the transfer of the choses in action was upon its face an assignment for the benefit of creditors, and that for this reason the attachment should have been sustained. It purported to transfer to L. C. Locke certain choses in action “as collateral to secure” M. E\ Locke and L. C. Locke for all indebtedness incurred by them by reason of their having become sureties to the assignors upon certain described debts. If the choses were transferred as collateral security, the légal consequence was that the equitable ownership remained in the assignors, while the assignees held them in pledge. Colebrooke, Coll. Sec., sec. 87, and cases cited. As the debtors were not, by the terms of the instrument, divested of the beneficial ownership, it was not an assignment; and although the debtors may have had no reasonable hope of paying the debts and retaking the collaterals, the property remained in them, and could be reached by unsecured creditors as other equitable assets may be. But it is argued that even if the choses were pledged, the transaction as to them was fraudulent because it hindered and delayed the creditors of the pledgors ; the debts it secured were valid, and the debtors had a right to secure them by a reasonable pledge of their property; and as it does not appear that the value of the pledges was so in excess of the debts secured as to warrant a legal inference of fraud, and there appears to be no hindrance or delay to unsecured creditors not necessarily incident to the securing of one creditor in preference to another, we are not warranted in holding as matter of law that this pledge was fraudulent. The direction to return the residue of the pledge to the debtors was not unlawful or fraudulent, since the creditors, while the pledge was held, could resort to it and reach the residue, and there was in fact no legal hindrance or delay interposed. Where such a provision is found in an assignment for creditors, it is held to be a fraud upon unsecured creditors because the debtor retains no interest in the property assigned that they can reach, and the residue is thereby guarded, as against them, for the benefit of the debtor. This reason does not exist in case of a pledge or mortgage, and the-,rule is therefore inapplicable.. Finally, it is argued that if fraud did not appear by the face of the papers, it in fact entered into the transactions, and the verdict that there was no fraud should be set aside. Many facts and circumstances to support this view are forced upon our attention with great force, but are we at liberty to consider their weight ? The issue was tried in a proceeding at law, and it is settled by a uniform line of decisions in this State that, in such cases, the finding of the judge or jury is conclusive upon us if there was any testimony to warrant it; it is not our province to weigh the evidence or .determine upon which side the preponderance is found. When we find evidence which, if believed by the judge or jury, would have warranted the finding, our investigation must end. This rule has been uniformly applied to trials upon the attachment issue, and we need say no more than that we find in the record evidence to warrant the verdict in this case. Affirm.