Guerin v. Hunt , 8 Minn. 477 ( 1863 )

By the Court.

EmMett, C. J.

The first point raised in the Bespondent’s brief is well taken, to wit, that the attachment under which the Defendants justify the taking complained of is void, because allowed by the clerk of the District Court. This Court has decided, in Morrison et al. vs. Lovejoy et al., 6th Minn., 183, that the allowing of a writ of attachment to issue is a judicial act, the power to do 'which cannot, under our constitution, be conferred upon the clerk. This would make the Defendants trespassers as to the taking of the property from the Plaintiff’s possession, even although it should be found that the assignment, under which the Plaintiff claims was fraudulent, as against the preditors of the assignors. But still this point does not necessarily dispose of the entire de-fence.

The action, it will be observed, is for taking and converting to their own use the property of the Plaintiff; but no special damage for the taking is alleged or claimed, general damages only being demanded, and that too in a sum answering exactly to the alleged value of the property taken. The defence is not confined to the attachment, but as though aware of the de_ fects above noticed, and with a view doubtless to the contin* gency of the writ being held to be void, it is alleged that the Defendants recovered a judgment against the assignors in the action in which said attachment was issued, and that execution was duly issued thereon and placed in the hands of the Sheriff — that prior to the recovery of said judgment, but while the property remained 'in the possession of the Sheriff under said attachment, sundry writs of execution, issued upon other judgments recovered bj other persons against the as signors of the Plaintiff, were placed in his hands for collection, under which the property attached was levied upon by said Sheriff and sold, subject, however, to the lien of the Defendants’ attachment aforesaid, and that the Defendants'judgment was paid out of the proceeds of such sales.

It will thus be seen thatnotwithstanding the original taking was unlawful, yet if the .assignment under which the Plaintiff claims title was, in fact, fraudulent, and the property therefore still subject to the claims of the creditors of the assignors, it might with reason be claimed by the Defendants, that in no event could they be liable for the value of the property, because that had, subsequently, been duly subjected to, and exhausted by the lawful claims of creditors; buf that they were liable only for such damages as the Plaintiff Sustained by reason of the taking and detaining of the property, until it was so seized by the Sheriff, under the executions before mentioned. In this view of the case, therefore, it becomes important to ascertain what was really decided by the general verdict for the Plaintiff. And in this we would have been materially aided by the amount of the verdict, from which we might have judged whether it was confined to damages for the unlawful taking merely (which should have been the case had the question of fraud been found for the Defendants,) or included also the value of the goods ; but the paper books furnished áre silent as to the amount for which the verdict was rendered. It is pretty conclusively shown, however, by the character of the testimony introduced» the nature of the instructions to the jury, asked by the ¡jar-ties respectively, and the charge of the Court thereon, and .upon the whole case, that the action was tried below solely upon the question of fraud on the part of Bartlett & Cazeau in making the assignment to the Plaintiff for the benefit of creditors- This question, in its various aspects, was fully submitted to the jury, under the charge of the Court, and found for the Plaintiff. And this finding (which in our opinion is amply justified by the evidence,) ought to be conclusive' on that issue, unless the charge to the jury, as given, or refused was erroneous and calculated to mislead.

The Defendants insist, on the authority of Burt vs. McKinstry & Sealy, 4th Minn., 204, that the Court erred in refusing to charge that in the absence of other evidence on the question, the value of the assets, as stated in the schedule accompanying the assignment, was conclusive upon the Plaintiff — that the value of the property assigned, as shown by th e schedule, was greater than the amount of the debts, and> therefore, that the assignment, as against creditors, was void upon its face.

The same points were also previously made, upon a motion t’o dismiss the action, after the evidence of the Plaintiff was closed, and the ruling of the Court, denying the motion, excepted to.

In the case referred to, the value fixed by the schedule was not regarded as conclusive, but only referred to as entitled to great weight in forming a conclusion as to the motives which led to the assignment; because, as was stated, there was no apparent inducement for placing a higher estimate than the assignors supposed to be just, and they.could not well have believed themselves insolvent, when by their own estimate the value of their assets was about three times the amount of their debts, as shown by the schedule. It was held, however, that they were bound by the admissions of the pleadings, which showed the cash value of the assets to be three times the amount of the debts. But it was not intimated that an assignment would be void, merely because the assets exceeded in value the amount of the debts. On the contrary, it was expressly stated in that case that it is only when the property assigned is much more than sufficient to satisfy all demands, that an assignment can for that reason be regarded as made at the expense of the creditors, and really for the benefit of the assignor; and the argument urged was, that a wrong intent could be inferred in a case where the value of the assets exceeded the debts by three times, as well as where it is. ten times the amount of the debts. A case was also cited in the opinion, with approval, (Beck vs. Burdet, 1 Paige, 205,) in which an assignment had been upheld, where the excess of the assets was about in the same degree as in this case ; and great,stress was laid upon the further fact, that the answer admitted that the assignors expected, when they made the assignment, there would be a surplus after paying the debts.

The result of the cases on this question may be stated to be this: that where the excess of assets is so unreasonably large as to force the conclusion that the assignment is made in the interest of the assignor, and to protect him from the sacrifice attending a forced sale, rather than for the benefit of creditors, there the assignment will be deemed fraudulent. But it must be apparent to all that the question of reasonableness or unreasonableness of the excess must depend upon a variety of circumstances, amongst which the convertibility of the assets into money is perhaps the most important.

There is another feature oí this assignment deserving of consideration and to which reference is made in the brief of the Plaintiff’s counsel. The instrument provides that in the event of there being an excess after paying the debts of the copartnership, then it shall be for the benefit of the creditors olthe individual partners; and as there is n'o schedule or other evidence of the amount of debts due the class of creditors thus provided for, how is it known that the value of the assets, even as fixed by the schedule, exceeds the amount of debts ?

These several rulings of the Court which we have above been considering, were repeated in nearly the same language when charging the jury upon the several points requested by the Defendants, and were again excepted to by the Defendants. It will not be necessary, however, to refer to them further in this opinion.

It may also be remarked that the questions raised by the exceptions to the instructions given by the Gourt, in response to the 10th and 11th request of the Plaintiff, are involved in what we have already said.

As to the remaining exceptions or the several instructions given by the Court upon the requests of the Plaintiff, numbered one, six and seven, we are unable to detect any error, The propositions therein involved, to wit: that an assign menl in due form, and regular upon its face, will not be presumed to be fraudulent, but the burthen of proof is upon those whcj attack it ; that upon the question of fraud the intent is the only subject of inquiry, and acts wholly independent of the fact of assignment, cannot be considered by the jury ; and that where the intention of the assignor is in good faith to devote the property assigned to the payment of debts, and not to defraud creditors, the necessary delay attending the execution of the trust, will not vitiate, — are each, we think, so entirely consonant with both reason and authority, that an extended discussion of either is not deemed necessary. Indeed, if we look at the entire charge of the Court, we can but regard it as highly favorable to the Defendants.

The judgment below is affirmed.