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good faith, and without any actual intent to defraud, hinder, or delay creditors, it is not alone sufficient to sustain the attachment. Of course, an assignment might contain provisions which would be so clearly inconsistent with honesty of purpose as would upon its face show actual moral fraud, and which would support an attachment obtained on that ground; but we cannot presume fraud from the provisions of an assignment unless such provisions are clearly inconsistent with honesty and fair dealing. In a case much like the one at bar this court has said:
“It must be remembered that the material question in this case is simply whether the attachment is valid, and that all questions with reference to the assignment arise only incidentally. This case is wholly unlike a case where an execution, with regard to the regularity and validity of which there is no question, or a case where an order of attachment, with regard to the regularity and validity of which there is no question, is levied upon property which is claimed by some person other than the defendant in the execution or the attachment proceedings, and claimed by him by virtue of an assignment made to him by such defendant of the property in question, in trust for the benefit of creditors. In such a case the validity of the assignment arises fairly and squarely. In a case like this, however, the assignment can be used only for the purpose of tending to prove or disprove the good faith or the fraud of the defendant in making the assignment. If he made it for the purpose of defrauding his creditors, then it tends to uphold the attachment; but if he made it in good faith, it does not so tend to uphold the attachment, although, possibly, for some technical reason, it may be void. The assignment may be void in this case, and yet the plaintiffs may not be entitled to their attachment.” Harris v. Capell, 28 Kan. 117. See, also, Milliken v. Dart, 26 Hun, 24.
The first objection to the deed of assignment is that the certificate of acknowledgment is defective and insufficient in not stating that the person making the acknowledgment was the same person who executed the instrument. This is purely technical, and, however it may affect the instrument as between the assignee and the creditors of the assignor, it certainly does not of itself disclose any bad faith on the part of the assignor in making the deed.
It is next claimed that a fraudulent intention is shown in the preamble of the deed of assignment, which recites that one purpose of the conveyance is to prevent an undue sacrifice of the property assigned; and we are cited to the case of German Ins. Bank v. Nunes, 80 Ky. 334, as being in point, and as holding a like statement in an assignment to be an evidence of bad faith on the part of the assignor. We do not think the case is applicable here. There, the validity of the deed was directly in issue. It contained a statement that the assets of the assignor were largely in excess of his liabilities, and the avowed purpose of the conveyance was to prevent a sacrifice of the property and to leave a residue to the debtor; thus showing that the assignor was not insolvent, and that his purpose was not to secure as much as possible to the creditors, but, on the contrary, to obstruct the creditors in the enforcement of their legal remedies, in order that the debtor might be benefited. In this case, the deed shows the defendant to be unable to pay his debts in full, and, coupled with the statement that he desires “to prevent an undue sacrifice of his property,” it is specifically stated that he is desirous of securing to all his creditors the possession of all his property, and he therefore conveyed the same to the assignee in trust for the benefit of creditors alone. No restriction was imposed upon the assignee in the disposition of the property, nor was there anything in the language of the deed, as in the Kentucky case, which showed a reservation of any interest in the assignor, or that he looked forward to a return of any residue from the proceeds of the sale of the property. Such a reservation might indicate that the real intent of the assignor was, not to devote his property to the payment of his debts, but rather to hinder and delay the enforcement of payment. But in the connection in which the objectionable phrase is used in the deed in this case, we may fairly infer that the purpose of the assignor was to preserve his property from waste through litigation for the sole benefit of his creditors, and that the same should be distributed in accordance with their respective rights. When we read the provisions of the instrument together, we find nothing in the one objected to which warrants the inference of fraudulent intent,-nothing necessarily inconsistent with honesty and fair dealing. Another evidence of dishonesty of purpose is said to be apparent on the face of the instrument in the alleged preference of a creditor. It is doubtful whether any preference was actually intended or made in the deed of assignment. The claim of the creditor referred to was one shown in the assignment to be secured by a chattel mortgage. If the chattel mortgage was made in good faith, and there is no evidence to the contrary, the law would prefer the claim thus secured, independent of any of the provisions of the assignment, to the extent of the property mortgaged, and we do not think the instrument can be fairly interpreted as intending any preference beyond what the law would make under the terms of the mortgage. The objectionable provision may be treated as a notice to the assignee of an existing lien on the property conveyed, and certainly we cannot see that it discloses a dishonest motive on the part of the assignor. Even if the provision objected to was treated as a preference, a fraudulent intent is not necessarily inferable therefrom, while in the case of a voluntary assignment a preference would probably operate to defeat the instrument. Tootle v. Coldwell, 30 Kan. 134; S.C. 1 Pac. Rep. 329. Yet, so far as the attachment proceeding is concerned, no dishonest motive is necessarily to be imputed to a preference, for, under the law, a debtor in failing circumstances may prefer creditors, providing it is done in good faith. Other objections are made to the form and language of the conveyance, and, on account of the informal and unusual provisions incorporated therein, it is justly open to criticism. Possibly some of these
defects might operate to defeat the assignment if its validity was di-
WALENTINE, J., concurring.
HoRTON, C. J. As to the second subdivision of the syllabus I do not agree, as applied to the facts of this case, nor do I assent to all said in the opinion.
(34 Kan. 189) -
Filed October 9, 1885.
1. FIRE INSURANCE–PROVISION AS TO SURRENDER AND CANCELLATION OF POLICY.
an amount of money equal to the “short rates” stipulated for, and the reason
able expenses incurred by the company in taking the risk before demanding the cancellation of his policy. 3. SAME—REASONABLE EXPENSES FOR JURY. And what are the reasonable expenses incurred by the company in taking the risk is a question of fact for the jury, and not a question of law for the COllrt.
4. SAME–WHAT EXPENSES ALLOWED.
the assured gave the company his two promissory notes, each for $108.15, drawing interest at the rate of 4 per cent. per annum, due, respectively, “on or before.” May 1, 1884, and May 1, 1885, for the unpaid portion of the premium. Afterwards the policies (two in number) were issued by the company and received by McLeod, and MicLeod held them until August 17, 1883, when he returned them to the company, asking that they be canceled. The right to have each of them canceled was reserved to McLeod in the following words, toWit:
“The assured may also cancel this policy by surrendering the same at any time after the premium or premium notes have been paid; the company retaining short rates, and all expenses incurred in taking the risk.”
The policies were returned by the company to McLeod, and the company refused to cancel the same, for the alleged reasons that he had not paid the two premium notes, nor all the expenses incurred in taking the risk. Again, on September 2, 1883, McLeod returned the policies to the company, renewing his request to have them canceled and his notes returned. This second request was refused, for the same reason as before, and McLeod was informed by the company that it would hold the policies for him and subject to his order, and his right to have the same canceled when he complied with what the company claimed to be the contract. On February 2, 1884, McLeod commenced this action against the insurance company in the district court of Marshall county, alleging in his petition, among other things, the taking of the insurance, the payment of the premium in accordance with the terms of the policy, his election to have the policies canceled, his surrender of the policies to the company, and a demand for a return of $259.60, the amount of the paid but unearned premiums, closing with a prayer for judgment for that sum. To this petition the defendant answered, denying generally, and also setting forth the execution of the two promissory notes; that they were wholly unpaid; that McLeod had a right by the terms of the policies to cancel them at pleasure bnly upon payment of his premium notes in full; and that the company then had the right to retain, out of the amount paid, an amount at the usual and customary rates, together with all the expenses incurred in writing said insurance and taking said risk; that at the date of the surrender of the policies by McLeod the customary short-rate premium would amount to about $70; that the expenses incurred in taking the risk and in writing the insurance were $124.61; that by the terms of the policies McLeod should pay said amounts before he could recover of the company, or cancel his policies. To this answer McLeod filed no reply. On September 6, 1884, the case was tried upon the petition and answer before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendant for the sum of $43.41, and the defendant, as plaintiff in error, now brings the case to this court for T€W16W,
John A. Broughten, J. G. Lowe, and A. B. Quinton, for plaintiff in error.
W. A. Calderhead, for defendant in error.
VALENTINE, J. The plaintiff below, Alexander McLeod, holding two insurance policies for the aggregate amount of $8,115, issued by the Burlington Insurance Company, desired to have them canceled, in accordance with a stipulation contained in each of them, which stipulation reads as follows:
“The assured may also cancel this policy by surrendering the same at any time after the premium or premium notes have been paid; the company retaining short rates, and all expenses incurred in taking the risk.
The company refused to cancel these policies, for the alleged reasons that McLeod had not paid the two premium notes given by him to the company, nor the expenses incurred in taking the risk. The plaintiff had already paid the company, as a portion of the premium for the policies, $108.70, and had given to the company his two promissory notes, each for $108.15, for the remainder of the premium, which promissory notes being due “on or before” certain dates, were due and payable at any time when the plaintiff might elect to treat them as due. Hence, under said stipulation, the plaintiff had the right at any time after receiving the foregoing policies to have them canceled by simply complying with the stipulation. The policies were issued on May 10, 1883, and the plaintiff applied to the company to have them canceled on August 17, 1883. It is agreed by the parties that the amount of the above-mentioned “short rates” for the time which the policies were permitted to run before the plaintiff demanded their cancellation was $64.92. This amount, it is also agreed, the company was entitled to retain; but the company claims that before the assured could cancel his policies or have them canceled it devolved upon him to pay to the company the amount of the two premium notes, and that the company would then be entitled to retain, not only the amount of the “short rates,” but also certain other and additional amounts as expenses incurred in taking the risk. These other and additional amounts claimed by the company are as follows: Five per cent. of the premium paid to the company's general agent, $16 23 Thirty per cent. of the premium paid to the company's local agent, - 97 38 Two and one-half per cent. of the premium paid to the state of Kansas,
8 12 Interest on the two premium notes,
Making a total to be retained by the company of
$189 53 We understand that the words “short rates” mean the various rates of premium for specified short times. The meaning would probably be better expressed by the use of the words, “premium or premiums at