22 Mo.App. 80 (Mo.App. 1886), Estes v. Fry

Citation:22 Mo.App. 80
Opinion Judge:THOMPSON, J.
Party Name:FIELDEN ESTES, Appellant, v. JACOB FRY, Respondent.
Attorney:W. H. MORROW, for the appellant: D. A. BALL, M. G. REYNOLDS, and W. H. BIGGS, for the respondent: Strenuous objections are made to the four instructions given at the request of the defendant, which were as follows:
Case Date:May 04, 1886
Court:Court of Appeals of Missouri
 
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Page 80

22 Mo.App. 80 (Mo.App. 1886)

FIELDEN ESTES, Appellant,

v.

JACOB FRY, Respondent.

Court of Appeals of Missouri, St. Louis.

May 4, 1886

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge.

Reversed and remanded.

W. H. MORROW, for the appellant: Evidence of an attempted compromise is improper. Smith v. Shell, 82 Mo. 215. Instructions containing abstract principles mislead rather than enlighten the jury. Chouteau v. Iron Works, 83 Mo. 73. An instruction which declares unconditionally the right of the defendant to sell or dispose of any of his property, thus completely ignoring evidence introduced as to the fact of the mortgaged condition of much of his property to the plaintiff, and thereby assuming the truth of a controverted fact, is erroneous. Farrar v. David, 33 Mo. 482; Wilkerson v. Thompson, 82 Mo. 317; Comer v. Taylor, 82 Mo. 341. The phrase " legitimate purpose" means lawful, accordant with law, and, therefore, submits a question of law to the jury for their determination. Hudson v. Railroad, 53 Mo. 525; Morgan v. Durfee, 69 Mo. 469.

D. A. BALL, M. G. REYNOLDS, and W. H. BIGGS, for the respondent: A debtor may prefer one of his creditors. Longermore v. Bushy, 56 Mo. 540; Dougherty v. Cooper, 77 Mo. 528.

OPINION

THOMPSON, J.

This appeal is prosecuted by the plaintiff from a judgment in favor of the defendant upon a trial by a jury of the issues made by a plea in abatement to an attachment. The grounds of attachment, which the plea in abatement put in issue, were as follows:

" 1. That defendant is about fraudulently to convey or assign his property or effects so as to hinder or delay his creditors.

2. That defendant has fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors.

3. That defendant has fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors.

4. That defendant is about fraudulently to conceal, remove, or dispose of his property or effects so as to hinder or delay his creditors."

The evidence at the trial showed that the defendant was a farmer in Pike county, and was heavily indebted, not only to the plaintiff, but to others, and had been so indebted for twelve years or more, and that there were various judgments standing against him; that in May, 1881, he had a few cattle, a few hogs, two mules and a wagon, one reaper, one drill, several plows and harness; also, one horse, which a short time before he had sold to his son. It also appeared that a married son of the defendant, W. H. Fry, lived at home with him and assisted him in carrying on his farm; that the plaintiff held a deed of trust upon the defendant's farm and also a chattel mortgage, the latter, given in 1876, conveying the entire crop to be grown upon the farm, together with the future crops to be thereon grown, except what should be necessary each and every year for the support and maintenance of the defendant and his family, and the keeping up of the farm, the crops to be grown, cultivated and sold by the defendant and the proceeds thereof, including all surplus stock of every description, to be faithfully applied to the payment of the indebtedness thereby secured.

We may here dispose of a point made in connection with this remarkable mortgage, a counterpart of which had been given by the defendant's son, W. H. Fry, by which the two seemed to have virtually surrendered themselves and the gains of their future industry for an indefinite period of time in a sort of serfdom to the plaintiff. It is claimed that, whereas portions of the property which the defendant is charged, in the affidavit for the attachment, with having fraudulently disposed of or with being about fraudulently to dispose of, was at the time covered by this mortgage, it was incompetent for the defendant to vary its terms by oral testimony, showing a pre-existing agreement of a different character, relative to the same subject, between the plaintiff and himself; and that it was erroneous, in view of the existence of this mortgage, for the court to instruct the jury that the defendant had a right to sell and dispose of any property belonging to him. We think it sufficient answer to these objections to say that we do not see in the record any evidence that the four hogs, and...

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