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estates. But here the appellant has such an interest and does not claim adversely to the estate, but only questions whether there is an estate, that he may properly protect the funds in 66 his hands, and save himself, if he can, from a twofold enlargement of his liability in respect of them.
Affirmed and remanded.
Under a Statute Giving the Right of Appeal to any person aggrieved by a probate decree, the only persons who may exercise such right are those who have rights which may be enforced at law, and whose pecuniary interest may be established in whole or in part by the decree: Briard v. Goodale, 86 Me. 100, 41 Am. St. Rep. 526. As to the right of an executor or administrator to appeal, see Sherer v. Sherer, 93 Me. 210, 74 Am. St. Rep. 339; Estate of Levy, 141 Cal. 646, 99 Am. St. Rep. 92.
An Administration on the Estate of a Person supposed to be dead but who in fact is alive is void: Springer v. Shavender, 118 N. C. 33, 54 Am. St. Rep. 708; Carr v. Brown, 20 R. I. 215, 78 Am. St. Rep. 855; Clapp v. Houg, 12 N. Dak. 600, 102 Am. St. Rep. 589; Selden v. Kennedy, 104 Va. 826, 113 Am. St. Rep. 1076.
STATE v. ACKERLY.
[79 Vt. 69, 64 Atl. 450.]
BIGAMY-Belief that Wife is Dead.-An honest belief, based upon reasonable grounds by a husband that his wife is dead, is no defense to a charge of bigamy, when the second marriage is within the statutory period of seven years' continual absence of such wife out of the state or beyond the seas. (p. 941.)
The respondent Ackerly left his first wife in the fall of 1898 in New Jersey, and down to and including the time of his second marriage in Vermont, on January 9, 1905, he had not known of the existence of his first wife, and supposed her to be dead, according to the information received from a friend. in New Jersey in 1901. His first wife never was in the state of Vermont, nor did he know her to be living from the time he left the state of New Jersey in 1898 down to and including the time of his second marriage.
H. S. Jackson, state's attorney, for the state.
J. W. Gordon, for the respondent.
71 MUNSON, J. The charge is bigamy, and the facts are agreed upon. The statute creating the offense provides that
it shall not extend to "a person whose husband or wife has been continually beyond the seas or out of the state for seven years together, the party marrying again not knowing the other to be living within that time": Vt. Stats. 5059. The case presented does not bring the respondent within the exception. It is urged, however, that the statute ought not to be construed to include cases where there is an honest belief in the death of the husband or wife, entertained upon reasonable grounds. This claim is not based upon anything contained in the statute, but on the general proposition that an intention to penalize an act that results from ignorance of fact not due to negligence ought not to be presumed.
There are many statutes in every jurisdiction that make the doing of certain acts criminal, without words bearing upon the knowledge or intent of the doer; and in prosecutions under statutes of this character it is ordinarily held that ignorance of the fact which makes the act criminal is not a defense: See 72 12 Cyc. 148, 157, 158. This rule has been applied in a great variety of cases, from breaches of police regulations to bigamy, adultery and statutory rape: See note to Farrell v. State, 30 Am. Rep. 617. It is held, however, in some jurisdictions, that an honest belief, based upon reasonable grounds, is a defense to the charge of bigamy, although the second marriage was within the statutory period: 4 Ency. of Law, 2d ed., 40. But the weight of authority in this country is the other way. The question has not been passed upon in this state, but the action of the court has at least been foreshadowed in cases recently decided: State v. Hopkins, 56 Vt. 250; State v. Wyman, 59 Vt. 527, 59 Am. Rep. 753, 8 Atl. 900; State v. Dana, 59 Vt. 614, 10 Atl. 727; State v. Tomasi, 67 Vt. 312, 31 Atl. 780; State v. Ward, 75 Vt. 438, 56 Atl. 85. It was claimed in State v. Tomasi, 67 Vt. 312, 31 Atl. 780, that ignorance of fact, unaccompanied by negligence, exempts from criminal responsibility. But it was said in that case, and said again in the Ward case (75 Vt. 438, 56 Atl. 75), that when a statute makes an act penal, without reference to knowledge, ignorance of the fact is no defense. No ground occurs to us upon which it can be urged that those cases should be distinguished from this.
There is nothIt is clearly the intent of the statute that one who marries within the seven years shall do so at his peril. ing in the harshness of the provision that justifies a doubt of this intention. The consequences of an invalid marriage to
society and to innocent parties are so serious that the law may well take measures calculated to insure the procurement of the most positive evidences of death before the contracting of another marriage in less than the time fixed.
Judgment that there is no error, and that the respondent take nothing by his exceptions.
The Decision in the Principal Case is supported by Commonwealth v. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468; Russell v. State, 66 Ark. 185, 74 Am. St. Rep. 78; Medrano v. State, 32 Tex. Cr. Rep. 214, 40 Am. St. Rep. 775.
MOWER v. McCARTHY.
[79 Vt. 142, 64 Atl. 578.]
CHATTEL MORTGAGES—Oral Agreement.-If a father loans his son money with which to purchase a stock of goods and establish a business, the son orally agreeing that his father shall be secured by the goods for the original and future loans, such agreement constitutes a valid chattel mortgage as between the parties. (p. 945.)
CHATTEL MORTGAGES Oral Agreement.-A verbal mortgage of chattels to be subsequently acquired is valid as between the parties. (p. 945.) CHATTEL
MORTGAGES-Possession-After-acquired Property. If it is stipulated that a chattel mortgagor may sell portions of the mortgaged property from time to time, in the ordinary course of business, and replace that sold with other property of similar kind and value, such after-acquired property on the mortgagee's taking possession of it becomes subject to the lien of the mortgage as of the date thereof. (p. 945.)
CHATTEL MORTGAGES—Bankruptcy-After-acquired Property.—A chattel mortgage on after-acquired property, under which the mortgagee has taken possession with the mortgagee's consent, is valid as against the mortgagor's trustee in bankruptcy in the absence of an express finding that such possession was taken for the purpose of affording a preference, though possession was 80 acquired within four months prior to the date of the mortgagor's petition in bankruptcy, and with knowledge that the mortgagor was insolvent and contemplating bankruptcy proceedings. (pp. 945, 946.)
CHATTEL MORTGAGES-After-acquired Property.-A chattel mortgage on a stock of goods may be made to cover goods subsequently acquired to replenish the stock. (p. 946.)
CHATTEL MORTGAGES—Bankruptcy-Liens.-The national bankruptcy act providing that where a preference consists of a transfer, the period of four months shall not expire until four months after the date of the recording or registering of the transfer is required, does not apply to a lien given by an oral chattel mortgage. (p. 949.)
CHATTEL MORTGAGES-Right to Possession.-If a father loans money to his son to enable the latter to go into business, and takes an oral chattel mortgage on the stock to be purchased to secure such loan, on the son's failure to repay it, the mortgagee is entitled, as against the mortgagor's creditors, to take possession of the goods, and such possession relates to the time of the execu tion of the mortgage. (p. 949.)
EVIDENCE-Admissions and Declarations.-If a son makes a common-law mortgage of chattels to his father and thereafter proceeds to obtain all the goods he can without paying for them, with intent to defraud his creditors, the mortgagor's statements showing such intent are inadmissible against the mortgagee, in the absence of evidence tending to connect him therewith. (p. 949.)
an attempt is made to show a conspiracy, a foundation must first be laid by proof sufficient to establish prima facie the fact of the conspiracy, before the admissions of an alleged conspirator can be admitted. (p. 950.) EVIDENCE-Mortgages-Declarations of Mortgagor.-The mere relation of mortgagor and mortgagee, in the absence of evidence of collusion between them to defraud creditors of the former, does not create such a privity of estate as makes the declarations of one admissible against the other. (p. 950.)
EVIDENCE - Chattel Mortgages - Bankruptcy - Declarations Against Title.-A bankrupt chattel mortgagor's declarations against his title to the property made while it was in his possession and before his bankruptcy, are admissible in evidence against his trustee in bankruptcy. (p. 950.)
E. C. Mower and Powell & Powell, for the plaintiff.
V. A. Bullard and R. E. Brown, for the defendants.
146 TYLER, J. On August 15, 1901, defendant McCarthy loaned his son Arthur $5,000 with which to purchase a stock of goods and establish a clothing business in Burlington, and afterward loaned him $2,000 and $1,000 for the same purpose and took his promissory notes for the several sums. When the $5,000 was furnished Arthur gave the defendant a verbal mortgage upon the stock that was then to be purchased as security for the repayment of that loan, and of all future loans that should be made, and it was understood between them that the mortgage should include the fixtures in the store and all goods that should be subsequently purchased to replenish or increase the original stock, and that the defendant might, at any time, take possession of the store and goods under his mortgage. Arthur had no capital; he carried on the business with the money loaned him by the defendant from August, 1901, till April, 1903. The defendant and his wife held a lease of the store during the continuance of the
business. 147 Arthur paid most of the rent and managed the business in all respects as if it were his own.
On April 3, 1903, the defendant by Brodie, a deputy sheriff, took possession of the store, fixtures, and goods by virtue of his mortgage and upon a writ that he sued out against his son. All the notes were then due and nothing had been paid upon them but $321.82 on the $1,000 note.
The defendant claimed that he took possession for the purpose of completing his mortgage, and that the property was rightfully in his possession by virtue thereof at the time it was taken from him by the plaintiff in this suit. The plaintiff claimed that the two McCarthys conspired to defraud the merchandise creditors and to obtain all the property for the defendant and thereby for their mutual benefit.
A petition in bankruptcy was filed against Arthur on May 15, 1903, and he was adjudged a bankrupt on June 6th following. He was insolvent at the time of the adjudication and his liabilities were far in excess of his assets.
The present action is replevin in which the plaintiff, as the trustee in bankruptcy of the estate of Arthur, seeks to recover the property described in the writ as belonging to the estate, while the defendant claims it by virtue of his verbal mortgage.
Neither of the McCarthys ever informed any of Arthur's creditors of the verbal mortgage nor of the existence of any lien upon the goods. The creditors had been pressing Arthur for payment before the defendant took possession, and the evidence tended to show that some steps had been taken toward making a sale of the bankrupt's stock and of a pro rata division of the proceeds among the creditors, and that this was with the defendant's knowledge and sanction.
148 Special verdicts were submitted and the jury found in substance as above stated that by the agreement relative to the verbal mortgage the defendant was to be secured on the goods, furniture and fixtures for the money advanced by him, also upon all goods that might be added to the stock until the advancements were repaid; that he was to have a right to take possession of the mortgaged property whenever he saw fit; that he took possession under his mortgage by his agent Brodie, April 3, 1903; that he was in possession of the mortgaged property when the writ in this suit was served; that $1,000 worth of the original stock was then on hand; that when the defendant took possession he had reasonable