Ring v. Ring

• Decision Date: 11 April 1882
• Citation: 12 Mo.App. 88
• Parties: MARY RING ET AL., Appellants, v. JOHN RING, Respondent.
• Court: Missouri Court of Appeals

12 Mo.App. 88

MARY RING ET AL., Appellants,

v.JOHN RING, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 11, 1882.

1. On a trial of a plea in abatement in attachment, evidence that the debtor had given sundry warehouse-receipts to different persons and had afterwards sold the goods described therein to other persons, is not admissible to prove an assignment by the debtor for the purpose of hindering and delaying his creditors.

2. An assignment which prefers certain creditors of the assignor is not therefore void; but it will enure to the benefit of all creditors, whether named therein or not.

3. A deed of assignment which reserves to the grantor the surplus, after payment of the debt, is not therefore void.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

A. R. TAYLOR, for the appellant: The deed from John Ring to W. H. Sears, trustee of Cole Brothers, was an assignment.-- Crow v. Beardsley, 68 Mo. 435. This deed of assignment gave a preference to Cole Brothers, and was, therefore, invalid so far as the preference was concerned.-- Crow v. Beardsley, 68 Mo. 435. Although neither Cole Brothers nor Sears, the trustee, participated in the fraudulent intent, yet if John Ring, the grantor, made the conveyance with the intent to hinder or delay his creditors, it was a ground for attachment.-- Burgess v. Burchert, 59 Mo. 83. If the deed was in legal effect fraudulent, then the law presumes the intent, and it was a good ground for attachment.-- Reed v. Peletier, 28 Mo. 177. The deed was fraudulent in law, because it was made to cover an indebtedness largely in excess of the amount due, $5,500.-- Cordes v. Straszer, 8 Mo. App. 61. The deed was fraudulent in law, because it conveyed a stock of goods to a trustee to carry on the business and change the form of the goods by manufacture.-- The State v. Mueller, 10 Mo. App. 87.

HAYDEN & GLOVER, for the respondent: The making of this conveyance only perfected a security which Cole Brothers had.-- Carter v. Holman, 60 Mo. 498; McQuie v. Peay, 58 Mo. 56. The burden was on the plaintiff to make out a case which entitled them to go to the jury.-- Knapp v. Joy, 9 Mo. App. 47. A reservation of the surplus does not make the deed void.-- Bigelow v. Itringer, 40 Mo. 208; Johnson v. McAllister, 30 Mo. 327.

LEWIS, P. J., delivered the opinion of the court.

The plaintiffs sued by attachment, alleging that the defendant had fraudulently conveyed or assigned his property and effects, so as to hinder and delay his creditors. Upon a trial on the defendant's plea in abatement, the court sustained a demurrer to the plaintiff's evidence.

The testimony tended to show that the defendant had been for many years engaged in the manufacturing and refining of lard, tallow, and other products of fatty materials, and, in December, 1880, being somewhat embarrassed in his affairs, made arrangements for advances of money from Cole Brothers, defendant agreeing to pay interest at eight per cent per annum, and a commission of one per cent on the amount of each loan. On January 14, 1881, he was indebted to Cole Brothers in an amount not then ascertained, but supposed to be somewhere in the neighborhood of $30,000. He had given to Cole Brothers, by way of collateral security, certain warehouse-receipts, which were now, for some cause, considered worthless. He thereupon executed and delivered, as a substitute for them, a deed of trust conveying all his stock and materials on hand, with the use of the refinery and machinery for completing the manufacture of such materials as were not ready for the market. This conveyance was made to a trustee, with authority to work up the unfinished material, sell all the products to the best advantage, apply the proceeds to the indebtedness to Cole Brothers, and pay over the residue, if any, to the defendant. The indebtedness was stated in the instrument as “not less than $30,000.” It was afterwards ascertained that the amount really due was $24,500. The property was immediately turned over to the trustee. Its value was estimated in testimony at from $6,000 to $8,000. There were other assets and property belonging to the defendant, which Cole Brothers and their attorney strongly urged him to include in the security, but he refused, saying in effect that he had other creditors to care for, and that his only present purpose was to make good to Cole Brothers the supposed security previously given them, which had turned out to be of no value.

The plaintiffs endeavored to prove that the defendant had given sundry warehouse-receipts to different parties, and afterwards sold or disposed of the property mentioned in them to persons other than the holders of the receipts; but the testimony was excluded by the court. This exclusion was proper. If the acts were committed, as charged, they did not constitute a fraudulent conveyance or assignment of the defendant's property, so as to hinder and delay his creditors. The property was...