Sleeper v. Chapman , 121 Mass. 404 ( 1876 )

Colt, J.

The issue in this case, which was submitted to the jury under the provisions of the Gen. Sts. o. 123, §§ 67, 69, was whether the mortgage of personal property, given by the principal defendant to Plumley, and by him assigned to Littlefield, the supposed trustee, was made to hinder, delay and defraud creditors. It was agreed at the trial that this issue should be taken to include the question whether Littlefield had notice of the alleged illegality.

The mortgage covered the furniture, fixtures and stock of goods in the principal defendant’s store, consisting in part of groceries and provisions. It was given to secure a note for $800, payable on demand.

The case was submitted to the jury upon all the evidence, under instructions not excepted to, and the verdict must stand unless the specific instructions requested, or some of them, should have been given.

1. The mortgage expressly provides that the mortgagor shall not attempt to sell or remove the goods and chattels, except with the consent in writing of the mortgagee; and, there being no evidence of such consent, the court properly declined to rule that the mortgage was given upon an arrangement to allow the mortgagor to sell and consume the stock in trade. So far as there was evidence of such an arrangement in fraud of creditors, it was proper to submit it to the jury on the question of fraud.

2. It is not true, as a legal proposition, that a conveyance by way of mortgage of personal property, given to hinder, defeat and delay creditors, is to be treated as void in the hands of an assignee, who takes the same for value, without notice, as against an attaching creditor. Bigelow v. Smith, 2 Allen, 264. Green v. Tanner, 8 Met. 411. Hoffman v. Noble, 6 Met. 68.

3. The court could not properly be required to rule that the single fact of the provision in the mortgage, that the mortgagor might use and enjoy the property mortgaged until breach of condition, would warrant the jury in finding that Littlefield had notice that it was fraudulent as to creditors. It can seldom he the duty of the court to instruct the jury that a single fact will warrant the jury in finding fraud. All the facts surrounding the transaction are to be taken into account collectively. And this fact must have been given the weight to which it was entitled, if any, in the instructions which were not excepted to. If the fact cannot be said to warrant the finding of the original fraud, it cannot surely warrant the jury in finding that Little-field had notice of the fraud. Banfield v. Whipple, 14 Allen, 13. Jones v. Huggeford, 3 Met. 515. Briggs v. Parkman, 2 Met. 258, 263. Exceptions overruled.