Mansur-Tebbetts Implement Co. v. Ritchie

• Decision Date: 01 April 1898
• Citation: 143 Mo. 587,45 S.W. 634
• Parties: MANSUR-TEBBETTS IMPLEMENT CO. v. RITCHIE et al.
• Court: Missouri Supreme Court

45 S.W. 634

143 Mo. 587

MANSUR-TEBBETTS IMPLEMENT CO. v. RITCHIE et al.

Supreme Court of Missouri, Division No. 1.

April 1, 1898.

FRAUDULENT CONVEYANCES — INSTRUCTIONS — OBJECTIONS — BURDEN OF PROOF.

1. An instruction which charges the jury to find an instrument fraudulent as to creditors if the grantee accepted it with a fraudulent intent is not erroneous, where other instructions given charged that they must find the grantor's intent, also, was fraudulent.

2. In instructing that a bank is bound by the knowledge of its cashier pertaining to a fraudulent transaction, it is unnecessary to charge that such knowledge must have been acquired in his official capacity, where the evidence shows no knowledge was acquired in any other way.

3. Erroneous instructions based on an immaterial issue cannot be objected to by the party who raised the issue.

4. Where a deed of trust to one is regular on its face, and he is in possession of the property, the burden of proof is on him who assails it by attachment to show that the transaction was fraudulent.

Appeal from circuit court, Chariton county.

Ejectment by the Mansur-Tebbetts Implement Company against J. J. Ritchie and another. F. E. Bruton interpleaded. From a judgment in favor of plaintiff, the interpleader appeals. Reversed.

On the 10th of May, 1894, J. J. Ritchie executed and delivered to S. P. Hudson a promissory note for $2,225.74, and secured it by a deed of trust, in the usual form, to Bruton, as trustee for Hudson, covering a stock of merchandise in Sturgeon, Mo., which was properly recorded the same day. Hudson at once transferred the note and deed to the Sturgeon Savings Bank, in payment and satisfaction of an indebtedness from him to the bank. On the 11th of May, 1894, Bruton, the trustee, went to the store, and found Mr. Owens, a clerk for Ritchie, in possession, who turned over the keys to the store to him; and he locked the doors, and kept the keys. On the 12th of May, plaintiff began a suit by attachment in the Sturgeon common pleas court against Ritchie and Hudson, and seized and sold the goods covered by the mortgage. Thereafter Bruton filed an interplea in the attachment suit, as trustee, for the use and benefit of the Sturgeon Savings Bank, and claimed the proceeds of the property by virtue of the deed of trust. Plaintiff answered the interplea, and averred that the deed of trust was a false and fraudulent conveyance, and was made by Ritchie to hinder, delay, and defraud his creditors, and that it was so designed by Ritchie, and so received and accepted by Bruton and the bank, who each knew and understood said purpose and intent, and actively helped, aided, and assisted in making the same effective and operative. The reply of the interpleader was a general denial. At the return term, plaintiff applied for a change of venue; alleging an undue influence of Bruton and the bank over the minds of the inhabitants of the territory embraced in the jurisdiction of the Sturgeon court of common pleas, and also a like influence over the people of Boone, Audrain, Randolph, and Howard counties. The interpleader objected, but the court granted the change of venue, and sent the case to the circuit court of Chariton county, where it was tried, resulting in a verdict for the plaintiff; and the interpleader appealed. For the interpleader, evidence was introduced tending to show: That prior to April, 1893, J. J. Ritchie and J. W. Ratliff were partners. That about that time S. P. Hudson, a brother-in-law of J. J. Ritchie, purchased Ratliff's interest in the partnership, nominally for himself, but really for the benefit of his brother-in-law. Hudson borrowed the money to make this purchase from the Sturgeon Savings Bank, of which J. S. Ritchie, the father of J. J. Ritchie, was the cashier. That thereafter the business was run in the name of J. J. Ritchie. That afterwards Hudson gave the bank his note for an overdraft the bank held against J. J. Ritchie. That on the 10th of May, 1894, J. J. Ritchie executed and delivered to S. P. Hudson a note for $2,225.74, payable one day after date, secured by deed of trust on the stock of merchandise, to cover the amount Hudson had paid to buy Ratliff's interest, and the note Hudson had given the bank to take up J. J. Ritchie's overdraft. That Hudson at once, on the same day, transferred the note and deed of trust to the bank, and took up his notes which he had given the bank on the two occasions referred to. All of the transactions between Hudson and the bank were made with J. S. Ritchie, the cashier of the bank, and the father of J. J. Ritchie. The stock of goods was worth $2,593.05. For the plaintiff in the attachment suit, evidence was introduced showing: That on the 19th of October, 1893, a statement of assets and liabilities was made to plaintiff "by the firm of J. J. Ritchie, city of Sturgeon, state of Missouri, which is composed of the following persons, J. J. Ritchie and S. P. Hudson, co-partnership unlimited, and engaged in the business of hardware and implements," showing that the assets exceeded the liabilities $12,300, which was signed only by J. J. Ritchie, and which recited that it "is presented as a basis of credit with Mansur-Tebbetts Implement Company." That on the 1st of November, 1893, plaintiff wrote Ritchie, calling his attention to the fact that the statement made it appear that Hudson was a partner, but that he had not signed the statement, inclosed him a copy of it, and asked him to have Hudson sign it. That on the 23d of November, 1893, Hudson wrote plaintiff, acknowledging receipt of the letter of the 1st of November to Ritchie, concerning the statement, and also of an order blank containing goods selected by Ritchie, aggregating over $1,900, and objecting to the terms of the sale because they gave plaintiff the right to ship the goods at any time, whereas "we cannot arrange to take care of them before January 20, 1894," and also because it gave no right to cut down the amount of the order, if, after checking up on the 1st of January, their financial condition required it, and saying: "While we desire to handle your goods, we do not want to purchase more than we can pay for, as this would make it unpleasant for all parties concerned. While we may find it to our interest to handle all goods selected in the order blank, and even more, yet it is unfair at this early date to tie ourselves up for such an order as this." And further adding: "For the above reasons, I respectfully decline to sign the attached statement unless the privilege is granted to reduce the order to suit the conditions of our financial circumstances January 1st, 1894, and to have shipment deferred as late as January 20th, 1894." It further appeared for plaintiff that the plaintiff acceded to the qualifications in the order suggested by Hudson, and the goods were shipped about the 20th of January, 1894, and that J. J. Ritchie gave plaintiff five notes in settlement of the order, — one dated March 10, 1894, for $153, and four dated March 31, 1894, for $445.04, $450, $700, and $600, respectively, — and that the attachment suit was based on them. It further appeared that both Ritchie and Hudson were largely indebted at the time the deed of trust was executed. The contention of the interpleader at the trial was that Ritchie owed Hudson, and Hudson owed the bank the same amount Ritchie owed him, — in fact, it was the same debt; that, to secure himself, Hudson took the note and deed of trust from Ritchie, and immediately transferred them to the bank, taking up his notes from the bank; that although Ritchie was in failing circumstances, if not absolutely insolvent, he had the right to prefer Hudson, even though the deed of trust covered the whole of his property, as it substantially did in this case. For the plaintiff it was maintained that J. J. Ritchie and S. P. Hudson were partners doing business under the firm name of J. J. Ritchie, that the partnership was insolvent, and that the note and deed of trust from Ritchie to Hudson were fraudulent, and intended to hinder, delay, and defraud the creditors of the firm.

At the request of the interpleader, the court gave the following instructions: "(1) The court instructs the jury that if they believe from the evidence that J. J. Ritchie was on the 10th day of May, 1894, indebted to S. P. Hudson on a bona fide claim for the sum of $2,225.74, for money advanced by said Hudson to said Ritchie, then the said Ritchie had the legal right to execute a deed of trust to F. E. Bruton, as trustee, on the property and stock of goods in question, to secure said debt; and if the jury believe that said Bruton, as trustee in said deed of trust, was in possession of said property at the time of the levy with the consent of said Ritchie, grantor in said deed of trust, and that said deed of trust was executed to said Bruton by said Ritchie in good faith to secure a bona fide debt in said deed of trust described, and that said deed of trust was recorded before the attachment writ in this case was issued or levied upon said property, and that said Hudson, for an adequate and valuable consideration, sold and assigned said claim secured by said deed of trust to the Sturgeon Savings Bank, then the finding of the jury should be for the interpleader." "(3) The jury are instructed that fraud will not be presumed, but must be proved, and the burden of proving it rests on the party alleging it, — the plaintiff herein; and while such proof need not be by direct or positive evidence, but may be by facts and circumstances, yet, if the jury believe from the evidence that all the facts and circumstances in the evidence agree as well with honesty and fair dealing as with dishonesty, you should find the deed of trust executed by J. J. Ritchie to F. E. Bruton for the use of S. P. Hudson to be valid, and your verdict should be for the interpleader. (4) If the jury believe that J. S. Ritchie, for the bank, in good faith accepted...