APPEAL
from Nodaway Circuit Court, HON. H. S. KELLEY, Judge.
Affirmed.
Motion for rehearing denied.
Statement
of case by the court.
This is
an action of attachment. The affidavit for the writ is as
follows:
" This affiant states that the plaintiffs in the above
entitled cause have a just demand against the defendant
herein, all past due, except $55.10, and that the amount
which this affiant believes the plaintiffs ought to recover
after allowing all just credits and set-offs, is two hundred
and eighty-five dollars and nineteen cents, and that this
affiant has good reason to believe, and does believe, that
the defendant has fraudulently conveyed and assigned his
property and effects so as to hinder and delay his creditors.
That defendant is about to fraudulently convey and assign his
property and effects so as to hinder and delay his creditors.
That the defendant has frandulently concealed, removed, and
disposed of his property and effects so as to hinder and
delay his creditors, and that he is about to so conceal
remove, and dispose of his property and effects."
The
action grew out of the following state of facts:
The
defendant, in 1881, was merchandizing at the town of
Clearmont, in Nodaway county. He owed, according to the
evidence, the 1st of December, debts unsecured amounting to
about $5000.00. His stock of goods and other assets amounted
to about $6000.00, by rough estimate. His principal creditor
was the firm of Tootle, Hosea & Co., of St. Joseph. Being
behind with his payments, his creditors began to press him
with their demands. On or about the 3rd day of December, C
W. Campbell, of the firm of Tootle, Hosea & Co., visited
the defendant, and urged him to secure their claim in some
way. The result of which was, that on the 5th of December,
Cissna agreed to execute to Tootle, Hosea & Co., the
following instrument:
" This indenture made and entered into this fifth day of
December, 1881, by and between John W. Cissna, of the town of
Clearmont, Nodaway Co., Missouri, and Tootle, Hosea &
Co., said firm composed of Milton Tootle, Wm. E. Hosea, Chas.
W. Campbell, W. W. Wheeler, and Joshua Motter, of the city of
St. Joseph, Missouri. Witnesseth: That the said Jno. W.
Cissna, being justly indebted to said Tootle, Hosea &
Co., in the sum of $1,988.40, embraced in two notes as
follows: One note dated July 20th, 1881, for $1,061.73, and
bearing 10 per cent. interest from date, and one note dated
December 3d, 1881, for $887.43, bearing 10 per cent. interest
from date--$1,988.40. Now, for the purpose of discharging
said obligation and paying said notes in full, which are
herein acknowledged just and due, and for the further
consideration of one dollar in hand paid, which is hereby
acknowledged receipt of, I, J. W. Cissna, do bargain and sell
and convey to Tootle, Hosea & Co., of Saint Joseph, Mo.,
and do give possession this day of my entire stock of dry
goods, groceries, queensware, boots and shoes, hats and caps,
and all other goods and furniture contained in my two-story
frame store building, situated upon lot (2), block (2), in
the town of Clearmont, Nodaway Co., Mo., or so much thereof
as will pay and satisfy in full the aforementioned notes
given to Tootle, Hosea & Co. for goods purchased of them.
This sale is made to Tootle, Hosea & Co., for the express
purpose of 1st, to pay Tootle, Hosea & Co. in full the
sum of $1,988.40 and interest, and the residue, after being
carefully disposed of by said Tootle, Hosea & Co., shall
be divided pro rata between my creditors, as
follows, as their claims may appear: Schuster, Tootle &
Co., $800; Patterson, Noyes & Co., $278; D. M. Steele
& Co., $750; Nave, McCord & Co., $200; V. B. Buck
& Co., $300; S. Lockwood & Co., $500; and for the
further satisfaction of all my creditors, if any there be
whose names are not here set forth, I transfer to Tootle,
Hosea & Co. all my book accounts and notes to collect and
distribute pro rata as claims may appear. In
consideration of the sale and transfer, and possession as
above made, the said Tootle, Hosea & Co. agree to bind
themselves to correctly invoice said stock of goods and
furniture at cost for such as are worth it, and all such as
are depreciated at value, and to sell the same to the very
best advantage and interest of all concerned, and first pay
themselves the amount of their notes and interest, as stated,
and then distribute pro rata to each and every
creditor of J. W. Cissna, whether above named or not. The
said Tootle, Hosea & Co. further agree to schedule all
the notes and accounts of Jno. W. Cissna, and use all due
diligence in the collection of them, and pay the proceeds of
said collection, after their notes are paid, to each and
every creditor pro rata. The said Tootle, Hosea
& Co. agree to use all mercantile care and diligence in
the sale of the above named goods, and in the collection of
the said notes and accounts, and upon the demand of any of
the aforementioned creditors, or other creditors, of J. W.
Cissna, after said Tootle, Hosea & Co. have received
their pay in full, to turn over all residue of cash,
merchandise, notes or accounts to whomsoever a majority of
the aforementioned creditors, and my other creditors, if
omitted in said mention, may elect, they agreeing to dispose
of all balances as before mentioned, pro rata, and
any residue after paying all my creditors, shall be paid over
to John W. Cissna, or his assigns. It is further agreed and
understood between J. W. Cissna and Tootle, Hosea & Co.,
that all legitimate expenses attending the sale of goods and
collection of notes and accounts should be paid out of the
proceeds of the sale of said goods and the collection of said
notes and accounts; and should the amount due each creditor
be incorrectly given, or should any creditor's name be
omitted given, it is understood they shall share pro
rata, as their claims may appear, it being the object of
J. W. Cissna to pay all of his creditors in full if possible.
Witness our hands and seals, this 5th day of December,
1881."
On the
6th of December, the foregoing instrument was duly executed,
acknowledged and put to record the same day; and Campbell
took immediate possession of the goods. By this time other
creditors appeared upon the scene, among them the plaintiffs,
who urged the defendant to provide for all his creditors
equally. Some of these deferred creditors claim that Cissna
and Campbell both represented to them that the goods had been
sold to Tootle, Hosea & Co.; but a copy of the deed was
exhibited to them by defendant. The plaintiffs failing to
secure their claim, instituted this attachment suit on the
same day of the execution of the deed, but subsequent
thereto.
On the
trial of the issues, made up on the plea in abatement, much
evidence was introduced by plaintiffs showing the history of
the transaction in question, and endeavoring chiefly to show
that the defendant's object in making said deed was to
prefer Tootle, Hosea & Co., and defer the other creditors
to secure to himself an advantage. Among other facts
developed on the trial was the following telegram sent
Campbell from his house in St. Joseph:
" Dated St. Joe, Mo., Dec. 6, 1881.
Received
at Clearmont, Mo., at 5:50 P. M.
To
C. W. Campbell, --
Judson
says to make the sale good, you must buy the stock and
accounts for a specific amount.
TOOTLE,
HOSEA & Co."
This
was after the said deed was executed and filed for record. It
seems that on the receipt of this telegram, Campbell drew up
and had Cissna sign the following paper:
" CLEARMONT, Mo., December 6, 1881.
For and
in consideration of the sum of two thousand dollars, to me in
hand paid, the receipt of which is herein acknowledged, I
sell my stock of dry goods, groceries, queensware, boots,
shoes, hats and caps, and store furniture contained in the
two-story frame building situate on lot (2), block (2), town
of Clearmont, formerly occupied by me. Also all my books and
accounts, and deliver the same to Tootle, Hosea & Co.,
sixth day of December, 1881, to have and to hold for their
exclusive benefit.
JOHN W.
CISSNA.
W. G.
Craig, witness."
This
paper had the following endorsement on the back:
" CLEARMONT, Mo., December 6th, 1881.
The
object of this bill of sale, as named within, is not to
deprive any creditor of their pro rata division, but
to more absolutely confirm the sale of December 5th to
Tootle, Hosea & Co., for the purpose named in said sale.
They agreeing to carry it out in all its provisions, and make
the pro rata division as provided for in said sale,
after receiving their pay in full.
J. W.
CISSNA,
TOOTLE,
HOSEA & Co.
Witness,
W. G. Craig."
Whether
this endorsement was made at the instant of the execution of
the bill of sale or shortly thereafter, was affirmed by the
one party, and denied or questioned by the other.
There
was no evidence tending to show any secret arrangement
between the defendant and Campbell, by which any property was
concealed or otherwise disposed of than is expressed on the
face of the deed. There was a statement of defendant, to the
effect that he expected Tootle, Hosea & Co. to put other
goods or buy other goods to keep up stock so as the better to
sell the goods transferred; and that his purpose in making
the deed was to give Tootle, Hosea & Co. a preference
and that the other creditors were not to be paid until T., H.
& Co.'s debt was satisfied. But his evidence tended
strongly to show that his purpose was to have his property
held to the payment of all his debts, and that he did not
expect any returns to himself out of the property conveyed
until after the satisfaction of all of his creditors....
