163 S.W. 260 (Mo.App. 1914), Johnson v. Mason

Citation:163 S.W. 260, 178 Mo.App. 109
Opinion Judge:ROBERTSON, P. J.
Party Name:OTTO A. JOHNSON and R. W. WILLIAMS, Respondent, v. PETER T. MASON, Defendant; FRANK MASON, Interpleader, Appellant
Attorney:J. W. Mayfield & Son and John N. Sanks for appellant. Lamar, Lamar & Lamar for respondents.
Judge Panel:ROBERTSON, P. J. Farrington, J., concurs; Sturgis, J., concurs in part and in the result and files a separate opinion. STURGIS Farrington, J., concurs.
Case Date:February 10, 1914
Court:Court of Appeals of Missouri
 
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Page 260

163 S.W. 260 (Mo.App. 1914)

178 Mo.App. 109

OTTO A. JOHNSON and R. W. WILLIAMS, Respondent,

v.

PETER T. MASON, Defendant; FRANK MASON, Interpleader, Appellant

Court of Appeals of Missouri, Springfield

February 10, 1914

Appeal from Texas County Circuit Court--Hon. Wilson A. Taylor, Special Judge.

AFFIRMED.

Judgment affirmed.

J. W. Mayfield & Son and John N. Sanks for appellant.

(1) If there are no creditors there can be no fraudulent conveyance to defeat the rights of creditors. Respondent's evidence most emphatically shows that they were only sureties, and a surety is not a creditor until he pays the debt or discharges the liability or is damnified. Hearne et al. v. Keath et al., 63 Mo. 84; Bauer v. Gray, 18 Mo.App. 170; McCormick v. Obanion, 168 Mo.App. 607; Huse v. Ames, 104 Mo. 91. (2) None but a creditor can attack a conveyance as being made to defraud creditors. Sec. 2881, R. S. 1909; McLaughlin v. McLaughlin, 16 Mo. 242; Lewis v. American Life Insurance Company, 7 Mo.App. 114; Skinner v. Oaker, 104 Mo.App. 45; Reynolds v. Faust, 179 Mo. 21; Stedman v. Hayes, 80 Mo. 319; Hayes v. Fry, 110 Mo.App. 20. (3) No fraud is shown on the part of the interpleader. Fraud is never presumed. Robison v. Dryden, 118 Mo. 534; Stahlhuth v. Nagle, 229 Mo. 570; Lumber Company v. Crommer, 202 Mo. 504; Bank v. Worthington, 145 Mo. 92. (4) The court erred in permitting witnesses to testify as to statements made to them by Peter T. Mason, when interpleader was not present. Torreyson v. Turnbaugh, 105 Mo.App. 439. (5) The court erred in giving instructions number five and seven in behalf of respondents. Phillips v. Rule, 124 Mo.App. 525; Shannon v. Oneil, 60 Mo.App. 531.

Lamar, Lamar & Lamar for respondents.

(1) Where the validity of the attachment and levy are not in issue under the pleadings, the plaintiff in the attachment need not introduce evidence of his being a creditor of the defendant. Graham Paper Co. v. Crowther, 92 Mo.App. 273. (2) An interplea in attachment is in effect a separate, independent suit in which the interpleader is the plaintiff and the plaintiff in the original attachment suit occupies the position of defendant. The sole issue in such case is the ownership and right to the possession of the property attached, and the burden is on the interpleader to show his title, and he must recover, as in replevin, upon the strength of his own title and not on the weakness of his adversary's. Car Co. v. Barnard, 139 Mo. 142; Bank v. Boyer, 161 Mo.App. 143; State ex rel. Reeves v. Baker, 26 Mo.App. 487; Rice-Stix v. Sally, 176 Mo. 107; Gitt v. McCammon, 74 Mo.App. 209; Kirchenslager v. Bank, 58 Mo.App. 165. (3) One of the issues in the case was the intent and purpose of Peter T. Mason, the defendant in the attachment. His fraud was the initial step in the development of plaintiffs' defense to the interplea, and his statements were admissible for that purpose. Holmes v. Braidwood, 82 Mo. 614; Holmes Organ Co. v. Petit Co., 34 Mo.App. 547; Clark v. Cox, 118 Mo. 656; Deslunger v. Harrington, 28 Mo.App. 636. (4) Knowledge of facts from which a prudent man would have known of the intent of the vendor has been held many times in this state to charge the vendee with knowledge of such intent. Sellers v. Bailey, 29 Mo.App. 180; Roan v. Winn, 93 Mo. 511; State ex rel. v. Estel, 6 Mo.App. 9; Bank v. Tobacco Co., 155 Mo. 609; Rupe v. Alkire, 77 Mo. 641. (5) It is not necessary that a purchaser participate in or assist in the fraud of the vendor. If he has knowledge of such fraudulent intent of the vendor, it vitiates his title. Grocery Co. v. Henson, 147 Mo.App. 31; Kurtz v. Troll, 175 Mo. 506; Bank v. Frye, 216 Mo. 34.

ROBERTSON, P. J. Farrington, J., concurs; Sturgis, J., concurs in part and in the result and files a separate opinion.

OPINION

[178 Mo.App. 112] ROBERTSON, P. J.

Plaintiffs sued the defendant, Peter T. Mason, in the circuit court of Texas county and thereafter, on March 29, 1913, obtained a writ of attachment and caused the same to be levied upon seventeen cows and two horses as the property of the defendant, then upon the farm previously occupied by...

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