Ivy v. Caston , 21 S.C. 583 ( 1884 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

Motions were made in the above cases at chambers, before his honor Judge Fraser, in November, 1888, to discharge the attachments therein. The motions were made on two grounds: First, for irregularity, the affidavits on which each was based being alleged to be insufficient. Second, that the warrants Avere improvidently issued, because the facts stated in the affidavits were untrue. Judge Fraser dismissed the motion in each case Avith $10 costs. The defendant has appealed, assigning error to the Circuit judge in holding the affidavits sufficient, and the warrants, therefore, regular ; and also in holding that the facts alleged had been sustained; in other words, in holding that the Avarrants had neither been' irregularly nor improvidently issued.

The remedy by attachment for the collection of a debt, though not strictly a common law proceeding, is yet of ancient origin, and has been incorporated into the legal systems of most countries where the rights of creditors are at all regarded. It has been engrafted by statute in some form upon the laAvs of perhaps all of our states. While no doubt it is a proceeding necessary to trade and commerce, yet it is a severe and somewhat harsh remedy, and should not be extended beyond its prescribed limits. In our state its foundation is an affidavit, in which must be contained the conditions specified in the act, to wit, that a cause of action exists against the defendant, specifying the amount of the claim, * * * and that the defendant “has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his property with intent to defraud his creditors.”

.If such affidavit be not made, or if either of these conditions be wanting in the affidavit made, and this appears upon the face of the proceedings, it would not be regular to issue the warrant; and if, notwithstanding these defects, it should be issued, it may be dissolved on motion, on the ground of irregularity. This, of course, refers to cases where the attachment is sought on the ground of disposition of property, &c., &c. So, too, if the statements contained in the affidavit, which, if true, would be sufficient to sustain the warrant, should afterwards be made to appear by counter-affidavits to be untrue, the attachment may be dissolved on the ground that it has been improvidently issued. These attachments, as has been said above, are assailed here upon both of the grounds mentioned, to wit, because both irregularly and improvidently issued. The first was issued by the clerk of the court and the other by the judge of the Circuit, and each upon the affidavit of the attorney of the plaintiff. These affidavits will be found in the statement of the- case.

We have three cases in our recent reports, in which the requirements of affidavits in attachment proceedings have been discussed and adjudicated. Smith & Melton v. Walker, 6 S. C., 169; Brown v. Morris, 10 S. C., 469; and Claussen v. Fultz, 13 S. C., 478. When the cases before the court are examined under the light of these cases just cited, we are constrained to the conclusion that the Circuit judge erred in holding the affidavits sufficient, and in refusing defendant’s motions.

In Smith Melton v. Walker, it was said, in substance, that where the attachment is sought upon theground that the debtor has assigned, disposed of, or secreted' his property, or is about to do so, the affidavit must not be founded simply upon information and belief, but it must state the facts upon which this belief is based.

In Brown v. Morris, where the plaintiff had attempted to conform to this rule, at least in form, by stating the facts upon which lie relied, it was held tha-t in addition to the statements of the facts, and the sources from which the information is derived, the evidence presented in support thereof should be of such a character as would in an action at law prima facie establish the facts alleged, the court saying, “that in no other way than in such sense and by such means, can the requisite facts be made to appear to the judge or other proper officer before whom the motion is made.” And in Claussen v. Fultz, where the attachment was obtained upon an affidavit in which deponent stated upon information and belief,- that the defendant was disposing of his property and effects with intent to defraud his creditors, and that he was running his business as agent for that purpose, the court held that such affidavit was insufficient, and that the plaintiff should go further and “show an actual disposition of the property made or intended, with intent to defraud his creditors.”

Now the only fact found in the affidavits here, which stands free from mere information and belief, and which is sustained by a positive averment of the deponent, is the fact that the debtor, previous to the issuing of the attachment, had executed a mortgage of his property to one Marks, a relative. The affiant in each case, it is true, after stating this fact, does go on to say that from inquiry and such information as could be obtained, he does not believe that Caston could be indebted to Marks in the sum mentioned in the mortgage, and that said mortgage was executed with the intent to defraud the creditors of Caston.

Noav the execution of the mortgage would not in itself be sufficient to satisfy the statute as a ground for the attachment; because it does not follow in every case that the execution of a mortgage is intended to defraud creditors. Mortgages are legitimate transactions and are of very frequent occurrence. There must be something more than this — something more than a disposition of the property even — there must be a disposition made or intended, with intent to defraud creditors; and the affidavit should contain facts bearing upon both of these conditions. Even assuming that the execution of the mortgage here might satisfy the first condition, i. e., a disposition of the defendant’s property (which it is not necessary now to determine), yet the affidavits are wanting in the statement of facts to satisfy the second^ viz., the intent to defraud creditors. There is a statement of belief on ■the part of the affiants, but this belief when analyzed seems to rest more upon hearsay, inferences, and conjecture, than facts within the knowledge of the affiants, capable of being testified to by them.

Of course, we decide nothing as to the character and intent of this mortgage. It may or not have been fraudulent in purpose. That is not the question before us. We are considering the sufficiency of the affidavits to sustain the attachments, and as the weight of these consists in the statement that the debtor, had executed a mortgage of his property previous to the issuing of the attachments, with no positive averment founded on sufficient facts as to the intent and purpose of this mortgage, we think, under the principles laid down in the cases cited supra, that said attachments should have been dissolved for irregularity.

Having reached this conclusion upon the first ground of appeal, it is unnecessary to discuss the second, and especially as that involves more a question of fact than of law.

It is the judgment of this court that the judgment of the Circuit Court be reversed.