Byrns v. Shaw

Mr. Justice Marker.

This was an action of replevin brought by appellee to recover personal property which had been levied on by virtue of executions against her husband. Her claim was based upon a chattel mortgage executed to secure the payment of two notes given by her husband to her for §4,000, It is insisted in behalf of the execution creditors that the claim of appellee and the manner of procuring the chattel mortgage ivere fraudulent; that it was a scheme concocted by husband and wife for the purpose of hindering and delaying the husband’s creditors in the collection of their claims. Of the §4,000 represented by the notes, all but §1,007 was for alleged indebtedness existing long before the date of the chattel mortgage. A great portion of it was for stock and cash received from her father and her father’s estate, w'hich was used and expended upon the farm occupied by her and her husband and which she fell heir to after her father’s death. A careful consideration of the facts and circumstances, as disclosed by the evidence in the record, satisfies us that at the time appellee turned over to her husband the stock so used and the cash so expended by him, there was no intention on her part to charge him with it. When he received the stock neither party treated the transaction as a sale. ¡No price was fixed; no time for payment made. When the cash was received, neither one treated it as a loan. At the time appellee’s father died, Shaw had a claim against him of §2,244, §1,456 of which was for improvements upon the farm. He did not probate his claim. If he at the time owed §1,200 for rent, as claimed by appellee, one-half belonged to her as heir of her father’s estate. It was arranged between appellee, her brother and Shaw that he should not ¡irobaie the claim, and the administrator did not collect rent from him. Under the arrangement that was made appellee did not have a claim for §600 against her husband, but really saved to herself several hundred dollars.

We think no part of a2ipellee’s claim valid exee2iting $1,007, i. e., the §507 security debt paid and the §500 loaned. We make no doubt that at the time she accepted the note and mortgage she thought she had the right to malee the stale claims raked u¡), basis in part for the notes. ¡For her action in so doing we are not disposed to attribute to her bad faith.

While the taking of a note and chattel mortgage for an amount largely exceeding the indebtedness, from one whom the mortgagee knows to be indebted to other parties, may be regarded as presmnptive evidence of fraud, the ¡iresumption may be rebutted. Appellee’s mortgage lien was good so far as it extended to the indebtedness of $1,007. She "was, therefore, entitled to the possession of the 2iroperty under her mortgage, and the court correctly found the issues •in her favor. ' After a sale she would, out of the proceeds, be entitled to enough to satisfy the §1,007 and interest and to pay the expenses of sale, etc.

We see no error of the court in refusing propositions of law submitted.

Judgment affirmed.