De Moulin v. Magnesite Refractories Co.

WILBUR, J.

On August 20, 1917, the defendant corporation was indebted to Ed De Moulin, its president, in the sum of $8,890.32. At that time it was indebted to Paul Milanovieh, the defendant, in the sum of $3,46.3.83. On August 20, 1917, Ed De Moulin and W. H. Puller, two of

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the three directors of the defendant corporation, purporting to act as such directors at a special meeting of such board, authorized the execution of three mortgages to A. J. De Moulin, wife of Ed De Moulin, to secure said claim of $8,880.32, one mortgage covering the real estate belonging to the corporation in Tulare County, another covering the personal property located in said county, and the third covering the personal property located in Los Angeles County, valued at $1,998.30. The mortgagee assigned the mortgages to plaintiff, U. S. De Moulin, who is a brother of Ed De Moulin, who brought this action to foreclose the three mortgages above mentioned, but subsequently dismissed the third count for the foreclosure of the chattel mortgage upon the property in Los Angeles. The defendant corporation made default and Paul Milanovich appeared, and by way of answer and cross-complaint asserted that the mortgages in question were fraudulent and void as to him, and asked to have his claim established as a superior lien on all the real and personal property of the corporation. The personal property in Los Angeles County was sold after the commencement of this action for $1,998.30, which sum had been paid to plaintiff. Defendant Milanovich sought by his cross-complaint to have such sum applied to his claim. Milanovich brought an attachment suit on the twenty-seventh day of August, 1917, and the writ of attachment was levied against all the real and personal property of the defendant corporation in the county of Tulare but was not levied upon the personal property covered by the chattel mortgage in the county of Los Angeles. Judgment was rendered by the trial court giving Milanovich a prior lien as to the real and personal property in Tulare County and denying his prayer that the proceeds derived from the sale of the personal property in Los Angeles County be applied to his claim. The plaintiff appealed from that portion of the judgment giving Milanovich a prior lien, and Milanovich appeals from that portion of the judgment refusing to direct the application of the proceeds of the personal property in Los Angeles to his claim. Both appeals were taken upon the judgment-roll, including a bill of exceptions, and are now before, us for consideration. The trial court found as a fact that the corporation was insolvent at the time of the execution of the mortgages in question, and it clearly appears from the pleadings and the evidence that the