30 Mo.App. 280 (Mo.App. 1888), Pettingill v. Jones

Citation:30 Mo.App. 280
Opinion Judge:ROMBAUER, P. J.
Party Name:H. F. PETTINGILL et al., Respondents, v. P. M. JONES, Appellant.
Attorney:F. S. HEFFERNAN and JAS. R. VAUGHAN, for the appellant: J. M. PATTERSON, for the respondents.
Judge Panel:Judge Thompson concurring, it is so ordered.
Case Date:April 10, 1888
Court:Court of Appeals of Missouri

Page 280

30 Mo.App. 280 (Mo.App. 1888)

H. F. PETTINGILL et al., Respondents,


P. M. JONES, Appellant.

Court of Appeals of Missouri, St. Louis.

April 10, 1888

         APPEAL fro the Greene Circuit Court, HON. W. D. HUBBARD, Judge.

          Judgment modified.

         F. S. HEFFERNAN and JAS. R. VAUGHAN, for the appellant: The court of its own accord, and without plaintiffs' request, and against defendant's objection, submitted two special findings to the jury, which was error, as shown by the statute on that subject and the decisions of this court. Sess. Acts, 1885, p. 214. There should have been a verdict for or against plaintiff Pettingill. The court erred in its instructions to the jury with reference to their verdict, virtually telling them that there need be no finding as to plaintiff Pettingill, and erred in receiving the verdict as rendered. McCord's Adm'r v. McCord, 77 Mo. 175; Ferguson v. Thatcher, 79 Mo. 511; Eichelman v. Weiss, 7 Mo.App. 87; Schweickhardt v. St. Louis, 2 Mo.App. 582. Whenever the party averring the fraudulent sale shows that the sale was fraudulent, or offers evidence sufficient to take the case to the jury on that theory, then the burden of showing a consideration paid and the want of notice devolves upon the party claiming that his purchase was for value and in good faith. Whenever a prima-facie case of fraud is made, the law, in the absence of anything to the contrary, will presume that all the facts and circumstances attending the sale are known to the purchaser. Halsa v. Halsa, 8 Mo. 303; Bishop v. Schneider, 46 Mo. 482; Johnson v. McMurry, 72 Mo. 278; Carson v. Porter, 22 Mo.App. 179.

         J. M. PATTERSON, for the respondents.


         ROMBAUER, P. J.

         This action is in replevin and the controversy turned upon the point whether the plaintiff Moore was a purchaser in good faith of the property from one Hazen, the debtor in the attachment writ under which the goods were seized by the defendant constable, as Hazen's property, at the instance of his creditors. An additional point arose touching the question whether the plaintiff Pettingill had any interest in the property at the date of the institution of the suit.

         The jury, under the instructions of the court, found a verdict in favor of plaintiff Moore in the following words: " We, the jury, find the issues for the plaintiff, B. F. Moore," and in answer to certain...

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