Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-24
SUPREME COURT.
FULL TEXT OF DECISION FILED

FULL TEXT OF DECISION FILED:
George a. Camp and Thomas B. Walker, part
ners, using the firm. name Of Camp d Walker,
respondents, Us. Nathaniel r. Thompson and
The State National Bank Of Minneapolis, i'm
pleaded, appellants.
OPINION.
The principal question in this case is whether
certain lumber was conveyed by one Clark to
the plaintiffs with intent to hinder, delay, or
defraud creditors. 1t appeared that in Sept,
1875, Clark entered into contract, Exhibit AZ
with plaintiffs, whereby he purchased the right
to cut logs upon their land at an agreed stump
age. and to secure the payment thereof, and
such sums as might be expended by plaintiffs
in relation to the logs, it was agreed that the
title to the logs should remain in plaintiffs
until the money due them on account
thereof should be paid. The contract futher
provided that in case Clark did not pay for the
logs by given time, he might saw them and
deliver to plaintiffs for their security the lum-
Der made therefrom. and from other logs to a
specified amount. The testimony in the case
went to show that pursuant to the contract
Clark sawed part of the logs and delivered to
plaintiffs the lum Der in controversy; that he
stOppeu ucA'eEluS lUmDeT III OCbODeI. 4ofO.
That at that time his Indebtedness to plain
tiffs for stumpage and advances was over
$4,000; that they being DESTROYS of procuring
more money, he made bill of sale exhibit
b of the lumber to plaintiffs, receiving from
them the paper exhibit G, and money suf6-
Gent to make up with stumpage and previous
advances $4,000 and supplies to the amount
of 81 $780, in all s14.5O0, and that he also re-
ceived from plaintiffs transfer of all the
manufactured logs held by them as
security under exhibit A, and which
were of the value OF about
S., 600. There was also testimony going to
show that at the time when the bill of sale
was made Clark was solvent, that is to say,
that he owned and was possessed of several
thou sand dollars worth of unexempt prop
erty over and above his Indebtedness, upon
which execution could be levied, and that a
considerable part of it was wholly unincum-
bered. There was also evidence tending to es-
| tablish the fact that the defendant bank by
which the bill of sale is attacked in this case
held in the hands Of it's cashier as security fot
! Clark & indebtedness, more property belong
ing to Clark than would suffice to pay all his
| indebtedness.
The bill of sale Exhibit b was absolute
! conveyance of the lumber of the plaintiffs.
Exhibit C, the paper given to Clark by plain.
tiffs provided that the plaintiffs should sell
and dispose of the lumber conveyed by the bill
of sale and apply the proceeds first to the pay.
! ment of the sum of $14,500 aforesaid
and interest, together with the charges
and expenses of the and sale
of the lumber, and second to pay over tt
| Clark, or his representatives, or assigns, tbt
remainder of the proceeds of sale.
There was no evidence Of any fraudulent in
terast in the transaction between the plaintiff
and Clark other than such (if any as is fount
In the bill of sale and the paper e., hibit @, ant
the plaintiffs possession of and disposal of tn
lumber.
The jury brought in a verdict for the plain
tiffs for the value of the lumber attached b,
defendants The verde. is in our opinion sua
tanned Ii tne evidence; we think the contrac
/ exhibit AZ was properly received in evidence
as part Of the history of the transactions be
tween Clark and plaintiffs.
! The transactions evidenced by the bill o
sale and Exhibit G. do not fall within the pro
visions of section fourteen, Oh. forty-one, Gen
eral Statutes, enacting that all conveyances o
goods, made in trust for the use of the perso
making the same shall be void agains
creditors of such person.
This section has no reference to cases i
which the conveyance is made, as in the in
stance at bar primarily and principally for th
use of the grantee, and where the use of tn
reservation to the grantor is merely incidents
and partial. Vose vs.. Stickney, 10 Mimi, 36f
and cases cited Trait Brothers VS.: Caldwell
Mimi. 1854.
Neltner 90 Lnese CEdnSaCIlcnS constitute
mortgage, for they show clearly that the Ell
tire property in the lumber conveyed by th
bill of sale was intended to pass and did pass
the plaintiff, and that no property therein wa
reserved to Clark or intended to be. His il
terest was not in the lumber but in any sui
plus of its proceeds, remaining after the plair
tiffs were paid. As stated in the outset tt
principal question in the case was whether tt
lumber was conveyed to the plaintiffs with i,
tent to hinder, delay or defraud Clarks cree
itors, and upon the evidence in the tn
question was to be determined upo
a consideration of the bill
sale. Exhibit c., including the facts an
circumstances attending the execution Of the
two instruments and the facts as to the plail
tiff's possession and disposal of the lumbe
The question was then one of mixed law ar
fact, and therefore e question for the jur
under proper instructions by the court, Th
9 was the view taken by the court below.
: 1t its charge to the jury, the court belo
having stated, in accordance with the fac
that it was not claimed on the part of the d
I PENDANTS that the evidence showed the exis
ence of actual intent the defraud the credito
of Clark other than as may be inferred fro
t the bill eff sale, the agreement and the posse
j. sion and disposal of the property, proceeded
instruct "a follows, viz: To constitute t.
transaction void, SO to enable the defen
: ants to recover in this action, it must appes
> first, that at the time of the sale Of the lumh
Clark was insolvent, and second, that the effe
of the transaction was to hinder and del
o Clark's creditors; that if at the time of ma
q ing the bill of sale Clark had in
name, subject to be levied upon by execute
9 sufficient property to pay all his debts, then
8 the purposes of this trial he would be solve,
We perceive no error here. If Clark was 81
: vent within the definition laid down by
: court, the conveyance effected by the bill
O sale could not in any rational sense be So
:. to have hindered, delayed or defrauded
u creditors, for Notwithstanding the conveyenc
% to pay all his creditors, and out of which tn
y could readily make their debts in the ordina
q course of law. TIE court further preceded
d charge the jury that If they found Clark
:, have been insolvent at the time of the maxi
of the bill of sale 1T would then be for them
Is inquire further into the question of fraudnle
!, intent; that the bill of sale conveyed two clas
:. of lumber, viz: One already delivered up
81 certain town lots. the other to be thereaf
,r delivered upon the same; that there is
# evidence that any lumber was deliver
: after the making Of the bill
t sale; that if the lumber actua
It delivered was not worth more than the sum
S14, 800. the amount of the consideration p
- for it. then there would be no excess of va
+ to which a trust in favor of creditors could
a tach, and therefore no fraud; that if the prope
sold was of no greater value than the conside
ton paid, then the effect would be to him
W and delay the creditors of Clark, for there wo'
ia not thereby be any property placed beyc
:, their reach other than such as was conveyed
"a consideration paid equal to the value Of
L. same.
"a The court thereupon proceeded to charge
jury that the question before them became
y. partly of law and partly of fact; that if 9
in fact they found that there was piled upon
~ lots and conveyed by the bill of sale an amo
~.
T. able degree exceeded the consideration pr
n. in the proceeds of which Clark was to hav
=. resulting interest, this would constitute
* badge of fraud to be considered in determin
IS, whether the sale was made with any fraudul
- intent. The idea of the court as
> gather from these and other portions of
of CHARGE appears to have been that so far as
- md racaiued