Rice v. Morner
Rice v. Morner
Opinion of the Court
Counsel for the appellants contends that the affidavit attached to the writ is insufficient to authorize the execution of the writ, because it is made by an agent of the plaintiffs, who does not disclose his means of knowledge of the facts to which he deposes. The required facts are positively sworn to, which is sufficient without also stating the agent’s means of knowledge thereof. Anderson v. Wehe, 58 Wis. 615. However, this appeal presents no question for determination other than the truth of the facts stated in the affidavit as grounds for executing the writ of attachment. The question of the sufficiency of tho affidavit is not involved. On the contrary, by taking issue upon the allegations of fact contained in the affidavit, the appellants admit that the affidavit, if true, is sufficient. Hence the only question to be determined is, Had the defendants, on or before November 28, 1884, made, or were they about to make, a disposition of any portion of their property with intent to defraud their creditors?
It appears from the evidence that between the 15th and 28th days of that month the defendants executed to several of their creditors conveyances of and mortgages upon real estate, and delivered to some of them goods out of their store to apply upon or secure their indebtedness to such creditors, to the amount in all of over $3,000.
Among the mortgages so executed by the defendants was one to Mendel & Smith, dated November 15, 1884, for $1,200. That firm is scheduled in such assignment as creditors in the sum of $1,110.49. Of this sum $400 was for goods sold the defendants after the mortgage was executed. So at the date of the mortgage the actual indebtedness of the defendants to the mortgagees was but little more than $100.
It is conceded that the mortgage purports to secure more than the mortgagees’ demand, but it is claimed that the testimony shows it was given to cover agreed future advances. That may be so, but it does not appear on the face of the mortgage. The above facts would fully uphold a finding that this mortgage is fraudulent as to other creditors of the defendants. In Butts v. Peacock, 23 Wis. 359, the late Mr. Justice Paine, speaking of the effect of
Because the trial court might properly have found from the evidence that the defendants were insolvent when they executed the mortgage .to Mendel & Smith, and that they executed the same to secure an amount much greater than the amount of their indebtedness to the mortgagees, with intent thereby to hinder and delay the plaintiffs and their other creditors, we cannot disturb the finding of the trial court that, when the traversed affidavit was made, “ the defendants had assigned, conveyed, disposed of, or concealed a part of their property with intent to defraud their creditors.”
Again, it appears that on November 22d the defendants executed to the Pritzlaff Hardware Company a mortgage on certain real estate, purporting to secure a debt of $400; and at the same time the defendant Morner executed a mortgage on another parcel of real estate belonging to the firm, but held, in his name, to the same creditor to secure a debt of the same amount. The actual indebtedness, as shown by the sworn schedules before mentioned, was only $319.64. All that has been said concerning the Mendel & Smith mortgage applies with equal force to the Pritzlaff mortgage.
The testimony strongly suggests other indications of fraud; but it is quite unnecessary to determine whether there were other fraudulent transactions. Neither is it necessary to consider the other finding of the court: that
JBy the Court.— The order of the circuit court is affirmed.
Reference
- Full Case Name
- Rice and others v. Morner and another
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- 1 case
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- Published