title:
M D Wells, H J MacFarland and B R Wells trading as M D Wells & Co attaching creditors of A Simon Mortgagor, Abraham Simon and Sarah Simon Mortgagors Appellants v Sarah McMahon Mortgagee Appellee, Reply Brief of M D Wells & Co Appellants
creator:
M. D. Wells & Co.
contributor:
Elwood Evans
contributor:
W. A. Reynolds
date:
1888-01
publisher:
Supreme Court of the Territory of Washington
type:
Civil
subject:
Real Property
language:
eng
format:
application/pdf
description:
Prior History: APPEAL from the District Court holding terms at Tacoma. Second District.Sarah McMahon, mortgagee, sued Simon and Simon, the mortgagors, to foreclose her mortgage given to secure a note made by the mortgagors to the mortgagee. M. D. Wells & Co. were joined as defendants, and claiming as attaching creditors an interest adverse to plaintiff in the mortgaged property. The mortgagors filed separate answers, each attacking the validity of the mortgage on account of fraudulent representations alleged to have been made by the agent of the mortgagee. M. D. Wells & Co., attaching creditors, in their answer, alleged among other things, in substance, that said mortgage was fraudulently executed by the mortgagors, by the procurement of plaintiff's agent and attorney, to enable the mortgagors to fraudulently conceal the property from their creditors, and to hinder, delay, and defeat the collection of their debts, and that the mortgage was given for a much larger amount than that advanced for or on account of plaintiff; and that said agent and attorney had full knowledge and notice of the claims and rights of the attaching creditors, when the mortgage debt was created, and procured the mortgage to be executed to defeat their claims. The plaintiff, in reply, denied all material allegations in the several answers. Several other issues were formed, tried, and decided in the court below which are not material to the points decided by the Supreme Court. The only finding of fact in the District Court on the question of fraud was as follows:"That said mortgage was negotiated and taken by the plaintiff by and through her said agent and attorney, in good faith, and without any intent or design on the part of the plaintiff or her agent to hinder, delay, or defraud any creditor or creditors of said Abraham and Sarah Simon (the mortgagors) or either of them, and there is no evidence to show that any creditor of said Abraham Simon was defrauded."Plaintiff had judgment, from which the mortgagors and the attaching creditors appealed.Fraudulent Conveyance – Agency – Knowledge of Agent Binding on Principal – Mortgage – Knowledge by the attorney of a mortgagee who makes the loan, at the time of taking the mortgage, that it was given by the mortgagor to hinder and defraud his creditors, or knowledge of facts which would have disclosed the intent, if ordinary diligence had been used, will render the mortgage void as to the creditors, though the mortgagee was ignorant of any such purpose, and the agent was innocent of any intent to conspire in the fraud.
relation:
Wells v. McMahon, 3 Wash. Terr. 532 (1888)
relation:
18 P. 73
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf