Johnson v. Mason

• Decision Date: 28 January 1914
• Citation: 163 S.W. 260,178 Mo. App. 109
• Parties: JOHNSON et al. v. MASON (MASON, Interpleader).
• Court: Missouri Court of Appeals

163 S.W. 260

178 Mo. App. 109

JOHNSON et al. v. MASON (MASON, Interpleader).

Springfield Court of Appeals. Missouri.

January 28, 1914.

1. APPEAL AND ERROR (§ 171)—ADHERENCE TO THEORY BELOW.

Where, in an action in which cattle were attached as defendant's property, interpleader claimed at trial that he owned the cattle by purchase from others than defendant, he cannot claim on appeal that he purchased them from defendant, and hence cannot complain of instructions relating to fraud by defendant in selling the cattle.

2. FRAUDULENT CONVEYANCES (§ 74)—CONSIDERATION.

An insolvent debtor cannot, as against creditors, give his personal property to friends or relatives.

3. ATTACHMENT (§ 307) — INTERPLEA — BURDEN OF PROVING CLAIM.

Under Rev. St. 1909, § 2300, requiring an attachment, plaintiff to execute a bond conditioned for the protection of the defendant and any interpleader, and section 2345 permitting an interplea to be filed in an attachment suit, plaintiff need not, as against an interpleader, prove his claim against the original defendant; that not being an issue in an interpleader proceeding.

4. ATTACHMENT (§ 308)—INTERPLEADER—BURDEN OF PROOF.

In an attachment proceeding in which an interplea was filed asserting claim to the property, the burden was on interpleader to prove his title to the property.

5. FRAUDULENT CONVEYANCES (§ 159)—BONA FIDE PURCHASER—KNOWLEDGE.

Knowledge of circumstances which would place an ordinarily prudent man on inquiry may authorize the jury to find that the purchaser had knowledge that the property was sold in fraud of the rights of creditors, but knowledge of such facts is not itself equivalent to notice of the fraudulent character of the sale.

6. TRIAL (§ 296) — INSTRUCTIONS — CURE OF ERROR.

Where, in attachment proceedings in which an interpleader claimed the cattle attached, the question of interpleader's purchase of the cattle in good faith from defendant was properly submitted in other instructions, error in an instruction that, in determining whether interpleader had knowledge of defendant's intent to defraud his creditors in selling the cattle, knowledge of circumstances putting an ordinarily prudent man on notice of such intent was equivalent to actual knowledge thereof was harmless.

7. EVIDENCE (§ 317)—HEARSAY.

In attachment proceedings in which an interpleader claimed the cattle attached, evidence of defendant's declarations of ownership not made in the presence of, or with the knowledge or acquiescence of, interpleader was incompetent as hearsay on the trial of the interplea.

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

Action by Otto A. Johnson and R. W. Williams against Peter T. Mason, in which Frank Mason interpleaded. From a judgment for plaintiffs, interpleader appeals. Affirmed.

I. W. Mayfield & Son, of Lebanon, and John H. Sanks, of Houston, for appellant. Lamar, Lamar & Lamar, of Houston, for respondents.

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 17 cows and 2 horses, as the property of the defendant, then upon the farm previously occupied by the defendant, but upon which the interpleader, Frank Mason, his son, was then residing. On June 16, 1913, the son filed his affidavit and claim to all of the cattle upon which this controversy is based. The trial in the circuit court resulted in a verdict and judgment in behalf of the plaintiffs, and the interpleader has appealed.

The defendant, who, it is conceded, was heavily involved, on February 25, 1913, had a public sale of a portion of his property, and soon thereafter left the state. It was developed by the testimony, however, that before he went he was guilty of such conduct as would justify the conclusion that he intended to defraud his creditors and that the interpleader so understood.

The testimony offered in behalf of the plaintiffs tends to prove that the father owned the property in controversy at and prior to the date of the levy, and that he so stated in the presence of his son, who made no objections thereto, and the interpleader's testimony tends to prove that he purchased and owned the cattle, either individually or in partnership with his father. Upon his claim of an interest by purchase from third parties, the jury, under proper instructions, found against him.

He is here now insisting that certain errors were made on the question of instructions in behalf of the plaintiffs relative to the alleged fraud of the defendant. As the interpleader rested his claim on the question of ownership, by reason of alleged purchases from other parties than defendant, we think that he should be confined to that issue here. We cannot understand wherein he can be heard to complain of any issue of fraud, because he cannot contend for a time that he bought the property from others than defendant, and when that is disbelieved, change and claim that he bought from the defendant. When he elected to make the defense that he had purchased from others than his father and that defense failed, as it did, we must then hold that he succeeded to the possession of the stock as a fraudulent purchaser, as donee or bailee of his father. If as a fraudulent purchaser, no one will question plaintiff's judgment; if as a donee, and it being conceded that the father was insolvent, then the interplea must fail, as a debtor should be just with his creditors before he is allowed to become generous with his relatives or friends (Welch v. Mann, 193 Mo. 304, 325, 92 S. W. 98; Star v. Penfield, 166 Mo. App. 302, 304, 148 S. W. 382); if as a bailee, he is in no position to complain.

The interpleader insists, however, that, since the plaintiffs claim that interpleader is holding as a fraudulent vendee of the defendant, he can be such fraudulent vendee of the defendant only in event the plaintiffs were creditors of the defendant; consequently, that it is incumbent upon the plaintiffs in the trial of this case to prove that, as a matter of fact, the defendant was indebted to the plaintiffs. This, in nearly every attachment case where there is an interplea, would necessitate the plaintiff proving his claim as against the interpleader as conclusively as if that issue were being tried against the defendant. It would mean that there must be two trials of that issue, and that plaintiff might win in one and lose in the other. Section 2300, Revised Statutes of 1909, requires the plaintiff, before obtaining his writ of attachment, to execute a bond conditioned for the protection of the defendant and any interpleader; and section 2345, Revised Statutes of 1909, permits an interplea to be filed in an attachment suit, which otherwise could not be done. So that the interpleader is placed in the attitude of taking advantage of a right conferred upon him by reason of the attachment laws, and, if the plaintiff is required to prove his claim against the defendant, then the interpleader is permitted to attack the very foundation of the privilege granted him. It is not incumbent upon the interpleader to file this claim, but it is simply an additional remedy, and one in which he must be regarded as having recognized the validity of the attachment in filing his claim. The appellant here...