McMillan v. Edfast

Mitchell, J. It appeared from the disclosure that Nyberg claimed the money in the hands of the garnishee by virtue of an assignment from the defendant prior to the service of the garnishee summons. The court, therefore, properly ordered that Nyberg be made a party, and notified to appear and maintain his right to the money. Nyberg did appear, and pleaded, claiming the money by virtue of a prior assignment from the defendant. . To this the plaintiff answered that, if any such assignment was made, it was without consideration, and with intent to defraud the creditors of Edfast. Upon the trial of this issue the claimant offered in evidence what purported to be a written assignment of the money to him, executed by Edfast, and acknowledged before a notary public in the manner provided for taking the acknowledgment of conveyances of real estate, with the certificate of the notary attached. Upon the objection of the plaintiff, [416] the court excluded the instrument on the ground that its execution was not proved. No other evidence was offered or introduced; whereupon the court ordered judgment in favor of t,he plaintiff. (Opinion published 82 N. W. Rep. 907.) The exclusion of the written assignment was manifest error. The acknowledgment of the instrument in the manner described dispensed with any other proof of its execution. 1878 G. S. ch. 73, § 67; Ferris v. Boxell, 34 Minn. 262, (25 N. W. Rep. 592;) Ellingboe v. Brakken, 36 Minn. 156, (30 N. W. Rep. 659.) This instrument, if admitted in evidence, would have established an assignment of the money to the claimant, Nyberg, valid between the parties, and also as to plaintiff, unless he proved the allegation of his answer that it was made with intent to hinder, delay, and defraud the creditors of the defendant, Edfast. The burden of proving this was upon the plaintiff. Unless the assignment was made under circumstances that would render it voidable as to creditors, it would be valid, although it was a mere executed gift. It was not incumbent, therefore, on Nyberg, in the first instance, either to prove that he paid a valuable consideration, or to disprove the fraud alleged by plaintiff. Where, as in this case, the instrument is valid on its face, the rule is elementary that the burden of proof rests upon the creditor to prove the fraudulent intent. The ‘‘chattel mortgage cases” cited are not in point, as they are governed by the special express provisions of the statute. Order reversed, and new trial ordered.