Page:North Dakota Reports (vol. 1).pdf/88

 1888, seized the property in question while it was in plaintiffs’ possession, upon writs of attachment issued in actions instituted against one T. T. Lee by the creditors of Lee; that on December 6, 1888, said Lee was the owner of and in the actual possession of said property, the same being situated in the lower story of a store building then owned by Lee at Devil’s Lake, Ramsey county, Dak.; that on said 6th day of December, besides debts due the attachment creditors, Lee was indebted to the plaintiffs in the sum of $2,959.07, which amount was unsecured, and indebted to the Merchants’ National Bank of Devil’s Lake in the sum of $2,486.04, which last mentioned indebtedness was secured by mortgage upon the store building of said Lee, the upper rooms of which building were the home of Lee and his family; that on said December 6th, and long prior thereto, said Lee was insolvent, and was being pressed for payment by various creditors; that the plaintiffs well knew that Lee was insolvent, and was being pressed for payment by his creditors, and had such knowledge at the time they took possession of the property under a bill of sale and lease from Lee as hereinafter stated; that on the 6th day of December one W. S. Stockdale, an agent of plaintiffs, was at Devil’s Lake, and then and there, in plaintiffs’ behalf, took the entire property in plaintiffs’ possession, the same being delivered to plaintiffs by Lee; that as a part of the same transaction, whereby the plaintiffs obtained possession of the property, Lee executed a lease of the store in which the goods were situated to plaintiffs, and also, for an expressed consideration of $5,800, made, executed and delivered a bill of sale of all of said merchandise and property, absolute in form, to the plaintiffs; that the plaintiffs continued in possession of said property in said store until the seizure was made under the writs of attachment upon the 8th day of December, as before stated.

The trial court also finds the following facts: "That at the time of the execution and delivery of the above bill of sale, and as a part of the same contract, it was orally and privately agreed between the plaintiffs and the said Lee that said bill of sale, and the property described therein, was to be received by said Newell & Co. merely as security for the amount due from said