Andrews v. Partee

Calhoon, J., delivered the opinion of the court. The point that this court is without jui’isdiction because the amount involved does not exceed' $50, is not well taken. It would be good as against the defendant in execution, because the judgment was for less than $50, exclusive of interest and costs. But here the controversy is with a claimant whose property was seized to satisfy an execution for about $69, and the property levied on was of greater value than $50. So the claimant has his appeal. It often happens that in cases involving very trifling amounts the costs swell to large sums. While the defendant cannot invoke the amount of these costs to obtain jurisdiction for appeal, a claimant may do so; certainly where property he claims to own, which is resorted to for satisfaction, is of value exceeding $50, as in this case, and where, as in this case, the amount of the execution exceeds the jurisdictional sum. The question on the solution of which our decision must be controlled arises out of the following state of facts: The claimant bases his right to the property on a trust deed in which he is named as trustee, executed by Mr. Dye to secure a Mr. Moore. Mr. Dye was a log merchant, engaged in cutting, shipping and selling logs. The trust deed not only conveys the horse and wagon involved in this litigation, and other personal property, but also conveys ‘‘ all the log timbers, sawed and unsawed, . . . I now have on hand, . . . and all the log timbers I may have, or cause to be had, by any and all hands I may have working with me on any timber I may buy or own during the years 1899 and 1900.” Mr. Moore, the beneficiary of the trust, testified, as a witness, that: “ When Mr. Dye executed that deed of trust to me, he owed Mr. West, and he wanted me to take it up. He owed Mr. West $80, and he owed me an old account of $137, and said, if I would pay Mr. West and give him about $20, he would give me a deed of trust on this property and these logs, and he says: ‘ Now, I won’t be able . . . I want to run along and get so I can do business. I want to [84] use these logs to get myself in shape, so I can do business. ’ I says, ‘ Go ahead, and do the best you can, and, when my deed of trust is due, I want you to come up and settle. ’ ” Q. “Did you agree that he was to go on that way, and use the first logs? ” A. “I agreed for him to go on and use part of them until he could get himself in shape. ’ ’ Notwithstanding the good faith and honest purpose of both these men, in fact, still the law denounces a trust deed hampered by such an agreement or understanding as fraudulent and void as to creditors. The rule is a hard one, but -it is too well settled by authority for us to disturb it. The understanding between Mr. Dye and Mr. Moore is the ‘ ‘ fly in the ointment ’ ’ which vitiates the instrument, not only as to the logs, but also as to everything else conveyed by it, so far as creditors of the grantor are concerned, and this is thoroughly well settled by authority.