Bishop v. Warner , 19 Conn. 460 ( 1849 )

Hinman, J.

The motion asks for a new trial, on the ground, that the verdict is against the evidence in the cause. It is claimed to be so, in several particulars.

1. It is insisted, that the witnesses, principally relied on, by the plaintiffs, to make out their case, namely, Scovill, Lang don and Blakeslee, really prove, that the mortgages, under which the plaintiffs claim title, are void ; as having been given to secure only the conditional liabilities of the mortgagees ; and as they purported only to secure an absolute note for 6000 dollars, they were, within the principle of Sanford v. Wheeler, 13 Conn. R. 165., invalid, on the ground that they were given to secure a claim altogether different, in its nature and character, from the one referred to and described in the deeds. This question depends upon, whether the consideration of the note for 5000 dollars, was such as the defendants claimed it — -security for certain conditional liabilities of the mortgagees' — or whether it was, as the plaintiffs claimed, the absolute note of the mortgagees to Apollas Warner’s estate for 1500 dollars, and a like absolute note to the bank for 3500 dollars. The jury have found the plaintiffs’ claim true ; and we are satisfied with their finding on this point. The testimony of Mr. Scovill, alone, would leave the question in some doubt: perhaps, upon his testimony, the fair inference would be, that the consideration of the note was such as the defendants claim it; but, while his testimony is not very clear upon the point, that of Mr. Langdon, with whom Mr. Blakeslee agrees, seems to leave little, if any doubt, upon the question. The mortgagees were, probably, men of property, and in good credit; and they loaned to Coley & Bradley their notes, to the amount of 5000 dollars, to enable them to raise money, and took, in exchange, their absolute note for 5000 dollars, secured by the mortgages in question. We see nothing objectionable in this*

2. It is claimed, that the evidence showed, that the plaintiffs had recovered a former judgment for the trespass complained of in this suit, which had been paid and satisfied; and, therefore, they could not again recover for the same injury.

It appears, that after the defendants had attached the property mentioned in this suit, together with certain unfinished materials for carriages, the plaintiffs instituted two suits against them ; one, an action of replevin, for the unfinished work on which the plaintiffs had recovered judgment, and that judgment was satisfied; and the other, the present action of trespass, for the finished carriages mentioned in the declaration. The property had all been taken, by virtue of a single attachment, to secure the damages demanded in that process. The officer returned, that it was all taken at the same time; and, it being all found together, or nearly so, on the same premises, either in separate shops, or in separate rooms of the same shop, but all at the same manufacturing establishment : and there also being the evidence of some of the witnesses, tending strongly to show, that it was all taken at the same time, or within a short time after the service of the attachment was commenced, obviously a strong prima facie case of but one taking was made out. Where a variety of articles are attached, as in the case of goods in a store, it will often occupy some considerable time for the officer to take possession of, inventory, and secure them all. The officer, in this case, was employed parts of two days in this business ; yet, if he goes about the service, and with no unnecessary delay, continues in it, till he h,as secured all the goods, it should be treated as but one act; and a party who attempts, in such a case, to split up a single act, into a number of distinct trespasses, is certainly not entitled to have any great favour extended to him. The officer, in such case, generally has no interest in making two or more distinct takings, of what may as well all be done at once; and the presumption, therefore, is very strong, from the facts in the case, in favour of the claim made by the defendants, on this point. Still, this was a question for the jury alone ; and from the testimony of Mr. Graves, we think they were justified, in finding that there were, in fact,- two distinct takings in this case :— that the officer, on the day when the service was commenced, took and removed finished carriages, to an amount which he deemed sufficient to secure the demand in the writ; and that, on the day following, having changed his mind in regard to a part of the property, he determined not to take away a part of the finished carriages, which he had first attached, but in lieu thereof, to make another attachment of the unfinished work, which he did ; and then, he removed that unfinished work, with the four carriages, for which damages are claimed, in this action. These facts, we think, are sufficient to justify the plaintiffs, in treating the attachment as two distinct acts ; one, in taking the finished carriages, on the first day ; and the other, the unfinished work, on the second day. It was the clear right of the jury, to pass upon the conflicting claims of the parties, on this question. It was a point, on which different minds might reasonably come to different results; and on such a point, especially where the verdict is in conformity to the justice of the case, so far as it rests on this question, we should not feel justified, in interfering with it.

We do not, therefore, advise a new trial, on either of these grounds.

3 The carriages in question, were attached, by the defendants, by virtue of legal process against Coley, Bradley & Co., who had formerly been the undisputed owners of them, and are so still, unless the title had become vested in the plaintiffs, by virtue of certain mortgages to Henry Scovill, Edward Langdon and Ransom Blaheslee, and the assignment of those mortgages to the plaintiffs. There was no question but that the plaintiffs made out a good paper title, by virtue of the assignment to them of these mortgages. But it was claimed, that neither the original mortgagees, nor the plaintiffs, as their assignees, had ever had possession of the property; but, that it had been suffered to remain in the possession of the mortgagors ; and on that ground, that the mortgages were constructively fraudulent and void, as against the defendants’ attachment. And the question now is, whether there was any evidence, which justified the jury in finding, that the possession had been changed from Coley, Bradley & Co., to the original mortgagees, or to the plaintiffs.

The first mortgage was made in 1841; and from that time up to 1845, the date of the second mortgage, there is no claim, or pretence, of any change in the possession. - What, then, was done in 18451 And, what was the condition of the property, from that time up to the time of the attachment 1 Formal possession was indeed delivered to the mortgagees, in December, 1845;'and this seems to have been thought all that was necessary. The parties went, in a formal manner, through all the different rooms and shops of the establishment, and delivered possession to the mortgagees, of all the personal property, and of the real estate on which it was ; and a like formal possession was delivered to Scovill, after he took an assignment from his co-mortgagees ; and so, again, on his transfer to Bishop and Wilson; and, also, on the transfer from Wilson to the plaintiff, Allen, there was, on each of these occasions, a like delivery of possession. The parties seem to have acted upon the idea, that the mere delivery of the possession, was enough to satisfy the rule of law on this subject; and that immediately thereafter, the possession might well enough go back again into the hands of Coley, Bradley & Co.; and that if they professed to be in possession, as the agents of the mortgagees, the property was secure from attachment by their creditors. Hence, we find Coley, Bradley & Co., immediately after each of these transfers of possession to other persons, re-established again in possession of all their property, carrying on their business, in the same manner as when they were the acknowledged owners of the establishment; — generally, we are aware, professing to act as agents for those in whom it was claimed, for the time being, was the paper title to the property ; but yet, in fact, acting without accountability to any one; paying their debts to other creditors, with the mortgaged property, as if they were the undisputed owners. Now, such a possession as this, is no better than none at all. There was just about enough done to satisfy an intelligent mind, that the possession of the mortgagees, and those claiming under them, so far as they may be said to have had any possession at all, was merely colourable, and not real. Indeed, Mr. Scovill, one of the original mortgagees, while he speaks in one part of his testimony, of having taken possession, — alluding, undoubtedly, to the formal possession which was taken by him — says, in another part, that the mortgagors, after the mortgage, “remained in possession as be- - fore-:” — and again, he says, in another part, 41 Coley & Br ley did the business in his name,” So, again, Mr. Blokes another of the original mortgagees, says, “ Coley, Bradley & Co. managed the business, as if there had been no mortgage, until the second mortgage was made ; and then Blake-slee, [who was then one of the firm of Coley, Bradley & Co.,] was authorized to send orders, as the agent of the mortgagees ; that the company made contracts to carry on the shop; and when the defendants attached, the business went on, as it had done previously.”

It is worthy of remark, that the mortgages, if intended for anything more than to keep creditors from attaching the property, were mortgages of specific articles, to secure a note for 5000 dollars ; and yet, for about a year after the possession was first formally delivered, up to the time of the attachment, the mortgagors were carrying on an extensive manufacturing business, with the mortgaged property;— supplying their customers from day to day ; selling the c¡ riages, as they were finished, and they were able to find p chasers ; and yet no account of the avails was, at any tir taken. Can any thing, short of direct and positive evider of the fact, more clearly or satisfactorily show, that the possession, from time to time, delivered to the different assignees of the mortgages, was merely formal and pretended ; that was done, only, because its tendency was, as stated by !\ Lang don, to keep creditors off'? Such a possession, sure is no better than none: if any thing, it is rather worse th none. An entire neglect to take possession, renders a sale, or mortgage, constructively fraudulent; and, in some cases, undoubtedly, is conclusive evidence of a fraudulent trust, when there is none such in fact. But where the possession is only colourably changed, the parties themselves knowing and admitting that its tendency is to keep creditors oil', it can hardly be otherwise, than that such was its principal object; and therefore, fraudulent in fact.

On the ground that there was no real change in the possession of this property; and that there was no evidence in the case, that authorized the jury to find any such change of possession ; we are satisfied, that it remained liable to attachment, as the property of Coley, Bradley & Co.; and consequently, the defendants had right to attach it; and the jury having misapplied and mistook the evidence, on this point, a new trial is advised.

In this opinion the other Judges concurred, except Waite, J,, who was not present.

New trial to be granted.