Mason v. Franklin

Eothrock, J. 1. MORTGAGE : badges of fraud: judgment creditor. I. The court gave the jury the following among other instruction s; “4. If the jury find from the evidence that the mortgage in question was executed by Wolcott in order to delay and hinder or prevent his creditors from collecting claims existing against Wolcott at the time, and the plaintiff, with knowledge of such facts, received the mortgage with intent to aid Wolcott in that purpose, or you find that it was without consideration or the true consideration, was not expressed in the mortgage, then the mortgage would be fraudulent, and would be void as to existing creditors of Wolcott, and you should find for defendant.” There was some controversy on the trial as to the amouut of the consideration for which the mortgage was given. That Wolcott at the time was indebted to the plaintiff in a considerable amount cannot be questioned under the evidence. This being the state of the proof the jury were explicitly told in this instruction that if “the true consideration was not ex [508] pressed in the mortgage,” they should find for the defendant. This was clearly erroneous. A variance between the true consideration and that expressed in the instrument is at most but a badge of fraud, proper to be submitted to the consideration of the jury, as a fact bearing upon the question of fraud. See Wood v. Scott, 55 Iowa, 114. II. The court further instructed the jury as follows: “6 The fact that Wolcott, the mortgagor, delivered the same to the recorder for the jrarpose of having it recorded may be a circumstance tending to show fraud in the transaction, but that fact alone would not, as a matter of law, render the mortgage fraudulent.” This instruction was not proper to be given in this case. The evidence showed without conflict that Wolcott executed the mortgage and delivered it to the plaintiff, and that after-wards the plaintiff procured Wolcott to file it for record. If this was done in good faith, the fact that Wolcott delivered it to the recorder should not prejudice the rights of the plaintiff. . If it was thought proper to give any instruction on this feature of this case it should have been qualified by reference to the undisputed facts attending the filing of the instrument for record. There are other alleged errors in the case. As the judgment must be reversed for those above discussed and as we have no argument for appellee, it is perhaps better that we leave the case here Eeversed.