State ex rel. Meyrose v. LaUrie
| Decision Date | 07 March 1876 |
| Parties | THE STATE OF MISSOURI, to use of FREDERICK MEYROSE, Appellant, v. JOSEPH S. LAURIE et al., Respondents. |
| Court | Missouri Court of Appeals |
A conveyance made with the intent, in good faith, of paying one or more creditors, though its natural and necessary effect be to hinder and delay other creditors, is not, therefore, void in Missouri.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.Fisher & Rowell, for appellant, cited: State v. Bennett, 37 Mo. 500; Sibley v. Hord, 3 Mo. 290; Cason v. Murray, 15 Mo. 378; Bump on Fr. Conv. 217, 221, and cases cited; State v. Lebaume, 19 Mo. 29; State v. Benoist, 37 Mo. 500; Bigelow v. Sturges, 40 Mo. 195; Thomas et al. v. Bobb, 45 Mo. 387.
Joseph S. Laurie, for respondents, cited: Reed v. Pelletier, 28 Mo. 177, 178; Bump on Fr. Conv. 70, 71, 232, 282, 283, 478; Murray v. Cason, 15 Mo. 379; Little v. Eddy, 14 Mo. 160.
Frederick Meyrose, to the use of whom plaintiff sues, claimed certain goods, valued at $843, which had been taken on execution as the property of one Blutevogel. The defendant gave the bond required by the statute, and the present suit is upon that bond. Respondents denied that Meyrose was the owner of the goods at the time of the levy and sale.
The evidence showed that Meyrose took a conveyance of the goods, knowing that Blutevogel was in embarrassed circumstances at the time. It appears that Blutevogel kept a small tailor-shop in St. Louis; that Meyrose was a journeyman in his employ; that Blutevogel owed Meyrose some money, and owed him, also, something for work. Meyrose and Blutevogel differ in their testimony as to how much was due for work and how much for money borrowed, but both agree that $600 was due altogether, and that this debt formed the consideration of two notes executed by Blutevogel to Meyrose, each for $300, one given in December, 1869, and the other in January, 1870. On April 15, 1870, Blutevogel sold out his establishment to Meyrose for $1,078, which is said to have been paid partly by the return of these two notes, partly by a note given by Meyrose for $300, partly by $75 paid by Meyrose to a creditor of Blutevogel, and the remainder in cash. The price paid was the invoice price of the goods, ascertained at the time by taking an inventory. The sign was at once changed, and Meyrose took full and exclusive possession of the store. On May--, 1870, defendants Crews and Laurie obtained judgment against Blutevogel, and immediately caused an execution to be issued, and levied on the stock which Meyrose had purchased, as he claims, from Blutevogel a few weeks before. There was some testimony tending to show that, at the time of the alleged transfer of the stock to Meyrose, he had knowledge of the particular indebtedness of Blutevogel for which the judgment under which the execution on which this levy was made was subsequently obtained. There is, also, evidence tending to disprove any such actual knowledge, on the part of Meyrose, of this particular debt.
The instructions given on each side are set out in the opinion below, as well as those asked by the plaintiff and refused. There was a verdict and judgment for defendants, and plaintiff, having duly saved every exception, his motion for a new trial being overruled, brings the case here by appeal.
The following instruction, asked by plaintiff, was refused:
“The court instructs the jury that, before they can find from the evidence that the sale from Blutevogel to Meyrose was made to hinder, delay, or defraud creditors, they must be satisfied from all the evidence in the case that such was the intention of said Blutevogel in making the sale, and that such was also the intention of said Meyrose in making the purchase; and, although they may find that such was the design of Blutevogel in making said sale, unless they further find that said Meyrose participated in, or was cognizant of, said fraudulent design, they cannot find that said sale was so made in fraud of creditors.”
Certain instructions asked by defendant were also refused. These it is not necessary to comment upon or set out.
The law applicable to the case was declared by the court to be embodied in the following instructions, asked by the plaintiff and defendants, respectively.
Plaintiff's instructions:
1. “The jury are instructed that, if they find from the evidence that the goods taken from the possession of Meyrose were his property, and were not returned to him after filing his claim, or not tendered to him, and by him refused, they will find for the plaintiff the full value of the goods, notwithstanding some portion of said goods were not, in fact, sold under the execution by which the levy was made, but on other executions against Blutevogel.”
2. “The court instructs the jury that the plaintiff was entitled to recover of the defendants for the value of the goods taken from his possession by the constable, and interest from the time of filing his claim herein, at the rate of 6 per cent., unless the jury shall be satisfied from all the evidence in the case that the sale from Blutevogel to Meyrose was fraudulent, or made to hinder, delay, or defraud creditors of said Blutevogel; and the sale aforesaid will be deemed bona fide and honest unless it is proven to be fraudulent, and the burden of so proving it is upon the defendant.”
3. “The court instructs the jury that the change of possession required by law to make a sale valid does not require that the goods shall be actually removed from one place to another, but it will be a sufficient compliance with the law if there be some unmistakable sign of such change of possession, such as taking an invoice, or putting up a new sign, or any other reasonable means which would impart notice to a prudent man that a change of possession had taken place.”
4. “Although the jury may find that Blutevogel may have intended to...
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