Berry v. O'Connor

Berry, J. Appeal from an order vacating an attachment issued •upon affidavits setting forth that defendant had assigned and disposed of a large portion of his property, and was about to assign and dispose of “all the balance” thereof, with intent to delay and defraud his creditors, of whom plaintiff was one. Upon a careful perusal of the affidavits used upon the motion to vacate, we are of opinion that, as respects the matters of fact in dispute between the parties, the affidavits read by plaintiff are fully met by those read by defendant, so that, so far as the order appealed from rests upon a determination of disputed matters of fact, we see no reason to disturb the result arrived at by the court below. It remains to pass upon sundry points made by plaintiff in support of his contention that the undisputed facts of the case show that certain chattel mortgages made by defendant, and relied upon in support of the attachment, are fraudulent, as respects creditors, as matter of law. And, first, a mortgage may properly be made to secure future advances. Madigan v. Mead, 31 Minn. 94; Brown v. Kiefer, 71 N. Y. 610; Ackerman v. Hunsicker, 85 N. Y. 43; Boswell v. Goodwin, 31 Conn. 74; Jones v. Guaranty & Indemnity Co., 101 U. S. 622; Jones, Ch. Mortg. §§ 94-97. It follows that a mortgage is not fraudulent per se, or as a matter of law, as respects the mortgagor’s creditors, because given in whole or in part to secure such advances. Second — Our insolvent law (Laws 1881, c. 148,) does not have the effect to render mortgages fraudulent or void as respects the mortgagor’s creditors, on the ground that they are preferential, except in proceedings under it. Outside of such proceedings the preferences [32] are not per se, or as a matter of law, objectionable. Smith v. Deidrick, 30 Minn. 60. Third — The fact that a mortgage is given'to secure a larger sum than is actually due from the mortgagor to the mortgagee, or that its condition fails to describe the real character of the indebtedness or liability intended to be secured, does not necessarily render the mortgage fraudulent as respects the mortgagor’s creditors. The question still is, was it made with intent to hinder, delay, or defraud the mortgagor’s creditors ? Minor v. Sheehan, 30 Minn. 419, and cases cited; Jones, Chat. Mortg. § 96. This disposes of all the positions of appellant to which we deem it necessary to advert specifically, and the result is that the order vacating the attachment is affirmed.