The Hawaiian gazette., 1890-01-07
for plaintiff; A. Rosa for defend
ants.
Honolulu, Oct. 81, 1889.
In the Supreme Court Of the Ha-
waiian Islands-In Banco. In
Vacation, December IL, 1889.
Cook VS.. DAYTON.
RepleuiR.
Cook VS., DAYTON.
ASsu1npsit.
Appeal from Police J,tstics, Homo
lulu.

|
| BEFORE JUDD G. j., MCULLY, PRESTON, BIchEK
| TON AND DOLE, u.
| Opinion of the Court by Preston, j.
This is an appeal from the decis-
ion of the Police Justice of Homo
lulu, whereby he gave judgment
for the plaintiff in both the above
cases.
On the 9th of March, 1888,
Richard Gaylord executed a volun-
tary deed, whereby he granted and
transferred to John Cook, the fur
niture, implements, utensils and
tools of whatever description and
kind then owned by Gaylord, and
being in or upon or in any way con-
nected with that certain dwelling
house and lot then occupied by him
situate on Alakea street, and also,
one brake and harness and one
horse, said property being particu-
larly specified in the schedule there
under, upon certain trusts in favor
of his (Cayford's) wife for her life.
This deed was not recorded until
the 10th of January, 1889. On the
18th of December, 1888, one Mar
Gus X. Colburn commenced an action
in the Supreme Court against the
said Gaylord for the recovery of
damages through the loss of horse
alleged to have been occasioned by
the malpractice of the said Gaylord
as veterinary surgeon: verdict
was rendered in the said action on
the 25th April, 1889, for the sum
of three hundred $4,000 dollars,
which judgment was duly entered
up and the amount is still unpaid.
Gaylord was adjudged bankrupt on
his own petition on the 2Otn of Au-
gust, 1889, and the defendant was
appointed assignee on the Both of
the same month. At the time of
the adjudication, the aforesaid
brake and harness was in the GUS
tedy of the Marshal under an at
tachment, and was delivered to the
defendant. On the Oath of June,
and before the bankruptcy, certain
of the furniture comprised in the
aforesaid deed was sold at auction
by James +. Morgan, and the pro-
ceeds, amounting to one hundred
and nineteen and 3O-100 ($119.30)
dollars were paid on the demand of
the defendant to him by Morgan.
1t appears from the testimony in the
lower Court that at the time of the
execution of the deed, Gaylord was
solvent and was not indebted to
any person whatever. Cook, the
trustee, never took possession of
the property.
The defendant appealed from the
decision of the Police Court on the
following points of law: First,
"Was not said trust deed in fraud
of creditors and therefore void?"
Second, "DOes not said deed come
under the provisions of Section 1868
of the Compiled Laws, page 1902"
BY THE COURT. 1t being adj
mitted that Gaylord, at the time of
the execution of the deed was not
indebted to anybody, and Colburn
not becoming a creditor of the
bankrupt until after the judgment
was signed, this case falls within
the principle of DOlCseH as. Kdpi-
lau, 3 Hawn. 700, where it is stated
that: "The law is likewise plainly
settled that a voluntary conveyance
not fraudulent in fact is good as to
subsequent creditors, though void
as to antecedent creditors )" we are
therefore of the opinion that the
deed is not a fraud as against the
assignee in bankruptcy.
With regard to the second point,
Section 1868 of the Compiled Laws
has no application to this case; it
merely requires mortgages of chat
tel property to be recorded; this
deed is plainly not mortgage.
Had it been proved that the bank
rupt was indebted at the time of
the execution of the deed to any
person, our decision might have
been different. We think that it
might fairly be contended that the
deed was intended to defeat or de-
lay creditors. We look upon the
deed with great suspicion, and re-
greet that under the circumstances
of the case we are compelled to
sustain the decision of the Court
below.
The judgment of the Court be-
low is affirmed.
w. o. Smith for plaintiff; A.
Rosa for defendant.
Honolulu, Dec. y, 1889.