14 S.W. 985 (Mo. 1890), State ex rel. Robertson v. Hope

Citation:14 S.W. 985, 102 Mo. 410
Opinion Judge:Brace, J.
Party Name:The State ex rel. Robertson v. Hope et al., Appellants
Attorney:Gage, Ladd & Small for appellants. Karnes & Krauthoff for respondent.
Judge Panel:Brace, J. Barclay, J., dissenting. Barclay Barclay, J. (dissenting).
Case Date:December 22, 1890
Court:Supreme Court of Missouri
 
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Page 985

14 S.W. 985 (Mo. 1890)

102 Mo. 410

The State ex rel. Robertson

v.

Hope et al., Appellants

Supreme Court of Missouri

December 22, 1890

Appeal from Ray Circuit Court. -- Hon. J. M. Sandusky, Judge.

Reversed and remanded.

Gage, Ladd & Small for appellants.

(1) Instruction, numbered 9, asked by the defendants ought to have been given. If part of the alleged debt, in professed payment of which the conveyance of July 12 was taken, was fraudulent, the whole conveyance was invalid as against creditors. Clark v. Lee, 44 N.W. (Sup. Ct. of Mich.) 266; Wallach v. Wylie, 28 Kansas, 359; Butts v. Peacock, 23 Wis. 359; Brasher v. Jemison, 13 S.W. 809; Wallis v. Adoue, 13 S.W. 63; Freybe v. Tiernan, 13 S.W. 370; Cordes v. Straszer, 8 Mo.App. 61; King v. Hubbell, 42 Mich. 599; Wait on Fraudulent Conveyances, 228; Johnson v. Phillips, 2 N.Y.S. 432 (Sup. Ct. N. Y.); Lehman v. Greenhut, 7 S. Rep. (Ala.) 299. (2) Plaintiff's instructions, numbered 1 and 2, ought not to have been given. They profess to cover the entire case and wholly ignore all the issues of fraud, which were made and tried. (3) Plaintiff's instruction, numbered 3, should not have been given. It singles out certain facts which a part of the testimony tended to prove, and declares that, upon those facts only, Robertson had a right to take the conveyance, and ignores other material facts which the testimony also tended to prove, and which, if true, would have rendered the conveyance to him invalid as against creditors. (4) Instruction, numbered 7, asked by the defendants, ought to have been given. It stated a correct proposition of law; there was evidence in support of it; and there was no other instruction which covered the ground. (5) Defendants' instruction, numbered 11, should have been given. (6) Instruction, numbered 10, asked by defendants should have been given. Bump on Fraud. Conv. [3 Ed.] p. 35 (transfer of all), p. 36 (embarrassment), p. 37 (expectation of suit), p. 38 (secrecy), pp. 39-40 (concealment), p. 51 (out of the usual course), p. 54 (unusual mode of payment), p. 54 (omission to produce important witnesses), p. 55 (proof of payment of consideration), pp. 56-59 (relationship); Richards v. Vaccaro, 7 S. Rep. 506; (s. c., Miss. April, 28, 1890); Klein v. Hoffheimer, 132 U.S. 376-7; Smith v. Craft, 11 Biss. 349; Benne v. Schnecko, 100 Mo. 256-7; Baldwin v. Whitcomb, 71 Mo. 651; Merrill v. Locke, 41 N.H. 486; Love v. Starkey, 18 N.W. 49; Arnholt v. Hartwig, 73 Mo. 485; Berry v. Whitney, 40 Mich. 65; Letson v. Reed, 45 Mich. 27; Carrier v. Cameron, 31 Mich. 379; 1 Am. Lead. Cas. [4 Ed.] 53; Cass County v. Green, 66 Mo. 498; Henry v. Sneed, 99 Mo. 407; Mayes v. Robinson, 93 Mo. 114; Rogers v. Hall, 4 Watts, 359; Street v. Goss, 62 Mo. 229; Lehman v. Greenhut, 7 S. Rep. (Ala.) 299; Leavitt v. LaForce, 71 Mo. 354. (7) The verdict ought to have been for the defendants; and the judgment rendered upon it should be reversed by this court for the reason that the verdict was evidently the result of gross ignorance, partiality or prejudice, and not of calm deliberation on the part of the jury. Baker v. Stonebraker's Adm'r, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 120.

Karnes & Krauthoff for respondent.

(1) Appellants' instruction, numbered 9, was rightly refused. First. It was erroneous in leaving to the jury to say whether any part of the indebtedness was fraudulent or justly owing. Hickey v. Ryan, 15 Mo. 62; Anderson v. McPike, 86 Mo. 293; Speak v. Ely, 22 Mo.App. 122; Estes v. Fry, 22 Mo.App. 80; Boogher v. Neece, 75 Mo. 383; Dyer v. Brannock, 2 Mo.App. 432; Wiser v. Chesley, 53 Mo. 547; Morgan v. Durfee, 69 Mo. 469; Turner v. Railroad, 76 Mo. 261. Second. The instruction did not assert a correct principle of law. Albee v. Webster, 16 N.H. 362; Bank v. Bertscby, 52 Wis. 438; Hulse v. Mershon, 125 Ill. 52; Cohn v. Ward, 32 W.Va. 34. (2) The court did not err in refusing instruction, numbered 7, asked by appellants. There was evidence of partnership, on July 12, 1882, to authorize it. (3) The tenth instruction asked by the defendants was properly refused. Fraud is not to be presumed, but must be proved by him who asserts it. Chouteau v. Sherman, 11 Mo. 385; Dallman v. Renshaw, 26 Mo. 532, 544; Rumbold v. Parr, 51 Mo. 592, 598; Henderson v. Henderson, 55 Mo. 534, 555; Page v. Dixon, 59 Mo. 43, 47; Burgert v. Borchert, 59 Mo. 80, 83; Ames v. Gilmore, 59 Mo. 537, 543; Funkhouser v. Lay, 78 Mo. 458, 462; Bank v. Murray, 88 Mo. 191; Weinstein v. Reid, 25 Mo.App. 41, 50. (4) In the following cases, it was directly decided that the burden of proving the facts necessary to impeach a transfer on the score of fraud, including, of course, the essential element of participation by the vendee, rests upon him who alleges the fraud. Gutzweiler v. Lackman, 39 Mo. 91, 99; Albert v. Besel, 88 Mo. 150, 153; Frederick v. Allgaier, 88 Mo. 598, 604; Bonney v. Taylor, 90 Mo. 63, 67; Hazell v. Bank, 95 Mo. 60, 65; Hard v. Foster, 98 Mo. 297, 313; Pettingill v. Jones, 30 Mo.App. 280, 283; Deering v. Collins, 38 Mo.App. 80, 88; Morgan v. Wood, 38 Mo.App. 255, 270. (5) And in this state, it must now be regarded as settled law, in such a case as this, that it is not enough to defeat a preference that the vendee knew that the vendor was insolvent and intended to defeat or delay his other creditors by making the transfer. The vendee must have participated in such intent for the purpose of aiding its execution. Shelley v. Boothe, 73 Mo. 74; Forrester v. Moore, 77 Mo. 651; Holmes v. Braidwood, 82 Mo. 610; Frederick v. Allgaier, 88 Mo. 598; Foster v. Mill Co., 92 Mo. 79, 88; Sexton v. Anderson, 95 Mo. 373, 379; Kendall v. Baltis, 26 Mo.App. 411, 414. (6) The verdict was not the result of ignorance, partiality or prejudice, but intelligence and calm deliberation on the part of the jury.

Brace, J. Barclay, J., dissenting.

OPINION

[102 Mo. 414] Brace, J.

-- This is an action against the defendant Hope, formerly sheriff of Jackson county, and the sureties on his official bond to recover damages for the seizure on the fourteenth of July, 1882, by said sheriff under several writs of attachment against Samuel Schneider of a stock of goods, wares and merchandise found by the sheriff in the possession of Robertson, the relator, and who claimed the same as his own property. The creditors of Schneider indemnified the sheriff by bonds, and after seizure he advertised the goods and sold them at public auction, and applied the proceeds on the attachments against Schneider.

The issue is practically between the attaching creditors of Schneider and the relator, as to the bona fides of a transfer of the goods made by Schneider to the relator on the twelfth day of July, 1882, evidenced by the following bill of sale, and delivery of possession in pursuance thereof:

"This instrument, made on this July 12, 1882, witnesseth:

"That I am largely indebted to J. M. Robertson, of Kansas City, Missouri, and evidenced by promissory notes as follows: One for $ 3,000, dated April 6, 1882; one for $ 2,500, dated March 7, 1882; one for $ 500, dated April 25, 1882; one for $ 1,000, dated May 10, 1882; one for $ 738.84, dated May 9, 1882; one for $ 1,791.25, dated June 17, 1882; one for $ 1,275.25, dated July 8, 1882; one for $ 500, dated May 8, 1882; one for $ 500, dated May 8, 1882; one for $ 500, dated June 17, 1882; one for $ 500, dated June 5, 1882; one for $ 600, dated May 18, 1882; one for $ 400, dated May 16, 1882; one for $ 500, dated June 13, 1882; one for $ 500, dated May 8, 1882; one for $ 400, dated July 6, 1882, and one for $ 1,897.50, dated July 12, 1882, and all payable on demand, with ten per cent. interest per annum from date. Now for, and in consideration of the satisfaction and surrender of said notes to me, and for the further [102 Mo. 415] consideration that he, the said J. M. Robertson, undertakes and agrees to pay to Miss Carrie Rice the sum of about $ 1,200, which I now owe her, I hereby sell, assign and transfer to said J. M. Robertson my entire stock of goods, and all store fixtures in store at number 407 Delaware street in Kansas City, Missouri, and consisting

Page 986

of all the whiskey, brandy, wine, beer, cigars, tobacco, and generally and specially each and every article in or about said store or used in connection therewith, and all the fixtures, chairs, desks, tables, stoves, wagon, buggy, safe, or whatever else there may be in or about said store. To be owned and enjoyed by the said J. M. Robertson free from any claim or demand of any kind whatsoever.

"Witness my hand the day and date above written.

"Sam Schneider."

The defendants claim that such transfer was made for the purpose of hindering, delaying and defrauding the creditors of the said Schneider.

The evidence for the plaintiff tends to show that for some years prior to August, 1881, the said Schneider had been engaged in the wholesale liquor and cigar business in Kansas City; that the relator resided in said city and for some years had been engaged in speculating in whiskey, and selling the same in the West on commission for large dealers doing business in Louisville, Kentucky, and had accumulated considerable means; that the relator and Schneider were friends, and that the former at times accommodated the latter with temporary loans in his business; that on the fourth of August, 1881, he loaned him $ 1,800 for his business; that on the tenth of August, 1881, they entered into the following copartnership agreement:

"Articles of agreement made and entered into this tenth day of August, 1881, by and between Sam Schneider, of Jackson county, Missouri, party of the first part, and J. M. Robertson, also of said county, party of the...

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