Wager v. Hall

*595 Mr. Justice CLIFFORD delivered the opinion of the court. Preferences as well as fraudulent conveyances, if made within four months before the filing of the petition by or against the bankrupt, are-forbidden, by the Bankrupt Act, but three things must be proved in order that the transaction may come within that prohibition and be affected by it as an illegal payment, security, or transfer: (1.) That the payment, pledge, assignment, transfer, or conveyance was made within four months before the filing of the petition by or against the bankrupt and with a view to'give a preference to some one of his creditors, or' to a person having a- claim against him or who was under some liability on his aceouqt. (2.) That the person making the payment, pledge, assignment, transfer,' or conveyance was insolvent or in contemplation of insolvency at the timé the preference was given or secured* (3.) That the person receiving such payment, plédge, assignment, or conveyancé, or to be benefited thereby, had reasonable cause to believe that the person making the payment or giving or securing such preference was insolvent, and that the payment, pledge, assignment, transfer, or conveyance was made in fraud of the provisions of the Bankrupt Act-. * On the 15th of December, 1869, the insolvent debtor named in the bill of complaint executed to the respondents a certain deed of mortgage of that date, of the following parcels of. real estate, situate in the town of Brodhead in that State, and known as the north one-third of lot o'ne in block one hundred and one, also all of .lot three,in block one hundred and one, also the north half of the south half of block seventy-nine, also the east half and the southwest quarter of block two hundred and six, also all of block one hundred and forty-two, it.appearing that all of these several parcels of real estate were conveyed by the insolvent debtor to secure the payment of five notes which he gave to the respondents, of the same date, payable to the respondents *596 or oi'der as follows: one for $600, payable in six months; one for $600, payable in twelve months; one for $600 payable in sixteen months; one for $600, payable .in twenty months, and one for $600 payable in two years, and all with interest at the rate of 10 per cent. Prior to that date, to wit, on the 27th of August of the same year, the insolvent debtor mortgaged the first-named parcel of real estate, which is his new brick store and lot, to Andrew P. Hayuer, the father of his wife, to secure the payment of three notes of that date which he.gave to the mortgagee, of the following tenor: one for $1287.87, payable in three years; one for $1000, payable in two years, and one for $1000, payable in three years, all with interest annually at the rate of 10 per cent. ■ Twenty-four days after he gave the mortgage to the respondents he filed his petition in bankruptcy, and on the •2d of February following he was adjudged a bankrupt. His creditors made an examination into his affairs soon after he gave the mortgage to the respondents, when it wTas made to appear that he was hopelessly insolvent, which induced him to make an effort to compromise with his creditors, but without any success,, and he then filed the petition to be adjudged a bankrupt, and on the 4th of March in the same year the complainant was duly appointed the assignee in bankruptcy of his estate. All of the notes secured by the mortgage to the respondents were given by the insolvent debtor for a debt which had been past due more than two years, and which the insolvent contracted for stoves purchased by him as stock in trade. His purchases were made on a credit of four months, and the record shows that the respondents, in repeated instances, called upon him for payment and had several times sent their agent to effect that object without much success. Small amounts were paid, but the insolvent debtor constantly asked for further indulgence, offering as a reason for his failure to meet his contracts that business was dull, and that it was impossible to collect what was due from his customers. *597 More than a year before the execution of this mortgage, he sold out his stock of stoves to other parties and abandoned that business, limiting his trade to that of a retail hardware merchant, and during that same year he built the new brick store which he mortgaged to his father-in-law three or four months before he gave the mortgage to the respondents. Precisely what sum the store cost does not appear, but it must have been as much as $6000 or $8000, as the evidence shows that he owed more than $14,000 when he gave the mortgage in question, a large portion of which had been due for a long time. Convincing evidence was also introduced showing that for a year or two he had been hard pressed for money by many of his creditors, and that his notes in repeated instances had been protested for non-payment, and it also appears that he had borrowed money at banks by means of indorsers and been obliged to got the same renewed, and he had used trust funds in his hands to pay pressing demands,'.and when called upon to repay the amount he was obliged to ask for delay. Some of the notes given for the stock of stoves he had used to secure past-due debts and such portion of the consideration as had been paid’he had expended in his business. Part of the money required to build the store, to wit, the sum'of $3000, he borrowed of his wife’s father, agreeing at the time to give him a mortgage of the premises when the store was completed, but the mortgage was not executed until the next season, and it appears that the respondents, when they heard of that mortgage through their agent, also demanded a similar security,- which the insolvent debtor for a time refused to give, pleading as an excuse for declining the request that it would injure his credit. Witnesses were also examined to show' that his credit was not in good repute, but it is unnecessary to enter into those details, as the proofs are of the most satisfactory character that he did not pay his debts when the obligations fell due and that he suffered his notes to go to protest. Nothing need be added to show that the means of ascertaining the condition of his affairs were at hand, as his other *598 creditors, when they instituted inquiries upon the subject, shortly after the insolvent debtor gave the mortgage to the respondents, found no difficulty in learning that he owed more than the value of his property, and that he had been insolvent for two years. Enough,.and more than enough has been remarked to show that the mortgagor was insolvent when he executed the mortgage to the respondents, as the fact is admitted both, by the mortgagor and the mortgagees. Preferences of one creditor over another áre prohibited by the Bankrupt Act, if made within four months before the ■filiug of the petition, and the complainant, as such assignee, prays that the mortgage may be declared fraudulent and void, and that the same may be decreed to be given up to .be cancelled, or that.the respondents may be required, in due form of law, to execute and deliver to him, as such assignee, a satisfaction, release, and discharge of the mortgage. • Proofs were taken, and the parties having been heard, the Circuit Court entered a.decree for the complainant, and the respondents appealed to this court. Made, ás the mortgage was, within twenty-four days next before the petition in bankruptcy was filed, and for the express purpose of securing to the respondents the payment of a large debt long overdue, the first material allegation to be proved may be considered, in view of the evidence already referred to, as fully established. Discussion to show that the effect of the mortgage was to secure a preference ovet all of the creditors of the bankrupt, except his wife’s father and the firm secured by one of the notes given by’the purchasers of the stoves, is unnecessary, as that proposition is self-evident; and the allegation that the ihortgagor w'as insolvent at the 'time may also be considered established, as it Í3 fully* proved and stands confessed.' Sufficient has also been remarked to show that the conveyance in mortgage was made with a view to give a preference to the respondents over all his other creditors, except such as he had previously secured in tlie modes previously explained. *599 Evidence of the most satisfactory character was introduced to show that the insolvent debtor had reasonable cause to believe that ho was insolvent, and in view of all the circumstances the conclusion of the court is that he knew that he was insolvent in the sense of the Bankrupt Act. . Creditors were constantly pressing him for payment, and he was notoriously unable to comply with their just demands. Extensions wore asked, which were sometimes granted and sometimes refused; and it appears that considerable of his paper went to protest. Such a conveyance, under such circumstances, could hardly be made by one deeply insolvent unless with a view to give the grantee a preference over other creditors, who were without any security, as the law authorizes the presumption that a person of ordinary intelligence intends what is the necessary and unavoidable consequence of his acts. Insolvency, as used in the Bankrupt Act, when applied to traders, does uot mean an absolute inability of the debtor to pay his debts at some future time, upon a settlement and winding up of his affairs, but a present inability to paj' in the ordinary course of his business, or, in other words, that a trader is insolvent when he cannot pay his debts in the ordinary course of business as men in trade usually do, and such must be the conclusion, even though his inability be not so great as to compel him to stop business. * Reference is made by the respondents to the case of Jones v. Howland,- † which it is insisted lays down a different rule. Suppose it be admitted that the opinion in that case affords some support to the suggestion, still it is only an apparent inconsistency; which is easily reconciled, as the case arose upon the prior Bankrupt Act, which did not declare such a conveyance void, unless it was made in contemplation of bankruptcy and for the purpose of giving the creditor a preference or priority over the other creditors of the bankrupt. ‡ What was said by the judge who gave the opinion in that case, *600 which is supposed to be inconsistent with the more recent opinions of the court upon the same general subject, was said in construing the provision referred to in the prior law. He did say in that case that if the debtor honestly believes he shall be able to go on in his business, and with such belief pays a just debt without a design to give a preference, such payment is not fraudulent though bankruptcy should afterwards ensue; but the judge admitted in the same case that if the debtor, being insolvent and knowing his situation and expecting to stop payment, shall'then make a-payment or give security to a creditor for a just debt, with a view to give him a preference over other creditors, such payment or giving security is fraudulent. But the present Bankrupt Act avoids a conveyance, made with a view to give a preference, if the debtor at the time be in fact insolvent, although he may not' contemplate bankruptcy in connection with the conveyance. * Such a conveyance, if made by a person actually insolvent or in contemplation of insolvency, to secure a preexisting debt, said Hoar, J., “may be avoided by the assignee if the mortgagee had.reasonable cause to believe him insolvent at- the time he took the mortgage, .and that the conveyance was made to impede the operation of the insolvent laws;” and he added that it is made primd facie evidence of such cause of belief if the conveyance is not made in the .usual and ordinary course of business of the debtor. † Nothing remains, therefore, to be re-examined except the issue whether the respondents had reasonable cause to believe thát the mortgagor was insolvent and that the Conveyance was made in fraud of the provisions of the Bankrupt Act. Proof that the respondents had actual knowledge that the mortgagor was insolvent at that time is hot required to support- the prayer for relief, but the allegation in that behalf is sustained if it appears that they had reasonable cause for such belief, as that is the language of tire Bankrupt Act. Actual knowledge of the alleged fact is not made the criterion of proof in- Such an issue, nor is it necessary that it *601 should appear that the respondents actually believed that the mortgagor was insolvent, but the true inquiry is whether they, as business’men, acting with ordinary prudence, sagacity, and discretion, had reasonable cause to believe that the debtor was insolvent, in view of all tbe facts and circumstances known to them- at the time the conveyance was made. * †‡Unless the debtor was in fact insolvent it ea'nnot be held that such a grantee had reasonable cause to believe the allegation, but if it appears that tli-o debtor was in fact insolvent as alleged, and that the means of knowledge were at hand, and that such facts and circumstances were known to the grantee as were clearly sufficient to put a person of ordinary prudence and discretion upon inquiry, it is well settled that it would be his duty to make all such reasonable inquiries to ascertain the true state of the case. Purchasers are required to exercise ordinary prudence in respect to the title of the :selier, and if they fail to investigate when put upon inquiry, they are chargeable with’ all the knowledge which it is reasonable to suppose they would have acquired if they had performed their duty in .that regard. † Creditors have reasonable cause to believe that a debtor, who is a trader, is insolvent when such a state of facts is brought to their notice respecting the affairs and pecuniary condition of the debtor as would lead a prudent business man to the concldsion that he is unable to meet his obligations as they mature in the ordinary course of business. ‡ All experience shows that positive proof of fraudulent acts, between debtor and creditor, is not generally to be expected, and it is for that reason, among others, that the law allows in such controversies a resort to circumstances as the, means of ascertaining the truth, and the rule of evidence is well settled that circumstances altogether inconclusive, if separátely considered, may by their number and joint oper&tion, especially when corroborated by moral coincidences, be sufficient to *602 constitute conclusive proof, which is a rule clearly applicable to the facts and circumstances disclosed in this record. * . Apply those two rules to the present case and it may well be said that the argument is concluded, as it is difficult to resist the conclusion that the respondents had actual knowledge that “the insolvent debtor was unable to meet his obligations as they matured in the ordinary course of his business.” † . Such proof, however, is hot required, as the only issue in this behalf is whether the respondents had reasonable cause to believe that the debtor was insolvent at the time they received the conveyance, testing the question under the rule' prescribed by'this court- ‡ Much discussion of the question whether the respondents had reasonable cause to believe that the conveyance was made in fraud of the Bankrupt Act may well be omitted, as the whole issue is substantially adjudged by the recent decision of this court, which is to the effect following: that the transfer by a debtor who is insolvent of his property, or a considerable portion of it, to one creditor as a security for a pre-existing debt, without making any provision for an equal distribution of its proceeds to all his creditors, operates as a preference to such transferee and must be taken as frimdfacie evidence that a preference was intended,-unless the debtor or transferee can show that the debtor was at the 'time ignorant of his insolvency, and that his affairs were such that he could reasonably expect to pay’all his debts; and that a transfer by an insolvent debtor of his property, or any considerable portion of it, with a view to secure it to one creditor, and thus prevent an equal distribution among-all his creditors, is a transfer in fraud of the Bankrupt Act. § ' Knowledge of a given fact' ma| be proved by circumstances, even in an ordinary equity suit, where, from the nature of the pleadings, the testimony of a single witness *603 without corroboration would not be sufficient to establish the alleged fact, and if so it cannot be doubted that circumstances in a cáse like the presentare sufficient to put the respondents upon inquiry, or even to show that they had reasonable cause to-believe the alleged fact, that the conveyance was made in fraud of the Bankrupt Act. Their debt had been overdue for two years, and throughout that period they had pressed the insolvent debtor for payment, both in person and through tbfeir agent, and it is not doubted that if they had made the least inquiry they would have been as successful as his other creditors were, a few days later, in ascertaining that he ivas hopelessly insolvent. . Beyoncj doubt they knew that he had'mortgaged his new brick store and lot to his wife’s father, and when he finally consented to .give them a’mortgage on all or nearly all of his real estate, they were fairly put upon inquiry, and having neglected to make' such they aré justly chargeable with'all the knowledge' it is reasonable to suppose they would have acquired if they had performed their duty as required by law. . Decree aeeirmed. Footnotes [*] Scammon v. Cole, 5 National Bankruptcy Register, 259. [*] Vennard v. McConnell, 11 Allen, 562 ; Thompson v. Thompson, 4 Cushing, 134; Barnard v. Crosby, 6 Allen, 331. [†] 8 Metcalf, 377-385. [‡] 5 Stat. at Large, 442. [*] Forbes v. Howe, 102 Massachusetts, 435. [†] Nary v. Merrill, 8 Allen, 452. [*] Coburn v. Proctor, 15 Gray, 38. [†] Tiffany v. Lucas, 15 Wallace, 410; Scammon v. Cole, 5 National Bankruptcy Register, 263. [‡] Toof v. Martin, 13 Wallace, 40. [*] Castle v. Bullard, 23 Howard, 187. [†] Toof v. Martin, 13 Wallace, 40. [‡] Coburn v. Proctor, 15 Gray, 38. [§] Toof v. Martin, 13 Wallace, 40; Nary v. Merrill, 8 Allen, 452; Metcalf v. Munson, 10 Id. 491; Scammon v. Cole, 5 National Bankruptcy Register, 269.