Southard v. Benner

Citations

• 7 Daly 40

Syllabus

<p>Tiie courts of this state have jurisdiction of an action by an assignee in bankruptcy to recover the proceeds of the foreclosure of a chattel mortgage made by the bankrupt in fraud of his creditors. Such a suit is not a matter or proceeding in bankruptcy within § 711 of the U. S. Rev. Stat., providing that the courts of the United States shall have exclusive jurisdiction “ of all matters and proceedings in bankruptcy.”</p> <p>When in such an action the plaintiff has given evidence of uninterrupted possession and disposal of the mortgaged chattels by the mortgagor; fieM,thatthe statutory presumption of fraud is raised, and a motion to dismiss the complaint on the ground that as respects the issue of fraud, no cause of action has been established, should be denied; and further</p> <p>Held, that it is not error in such an action to charge, that if the mortgage was not fraudulent and defendants, the mortgagees, knew of sales of the chattels being, made but supposed the proceeds were to be applied to the payment of their debts, they were entitled to a verdict; but if the jury found the converse of those facts, the plaintiff would be so entitled.</p>