"BOND, J. This is a suit brought by the purchaser of a portion of this stock of an insolvent merchant, the remainder of whose stock was assigned for the benefit of creditors. The purchaser gave a chattel mortgage on the goods to secure the price, which was nine notes of $100 each. After a credit of about $50 was put upon these notes to reduce them to the amount of goods purchased at the agreed charge, they were indorsed without recourse by the payee to his brother, Leopold Schorle. An attachment suit was instituted by a creditor of the vendor, which was levied by defendant Troll, as sheriff, upon the said goods, which were subsequently sold and applied to a judgment on the merits and also sustaining the attachment, which was entered upon the written offer to that effect of the attachment defendant. The present suit is against the defendant sheriff and the sureties on the attachment bond for an alleged conversion of the goods seized under the writ of attachment. Defendants gave evidence tending to prove that the goods sued for were fraudulently conveyed by the defendant in the attachment suit, and that plaintiff purchased them with knowledge of and participancy in said fraud. This was, however, denied by plaintiff, who claimed, further, that his note for the purchase money had been transferred by the vendor in payment of a debt due the brother of his said vendor. It was further shown that the note evidencing this indebtedness was not surrendered nor delivered up when plaintiff's notes were assigned to the holder. It is not claimed that the market value of the goods exceeded $850. The jury returned a verdict for $1,500, of which plaintiff remitted $650, whereupon the court overruled defendants' motion for a new trial, and they perfected an appeal to this court.
"1. Upon the theory that the notes for the purchase money of the goods were to be transferred by the vendor to pay or secure his indebtedness to his brother, the court instructed the jury that the sale to plaintiff was valid, notwithstanding it was made for the purpose of hindering, delaying, or defrauding the creditors of the vendor, and notwithstanding the further fact that the plaintiff (the vendee) knew of and participated in such purpose and intent, unless it further appeared that the transferee of the notes also knew of and participated in such purpose and intent, and that this latter fact was also known to plaintiff. It is not believed this view of the law can be sustained. The difference in the legal status of a volunteer purchaser and the creditor of an insolvent vendor in a sale or conveyance made by him to defraud his creditors has been so often and so clearly drawn by the decisions in this state and elsewhere that it needs only to be stated to be thoroughly accepted without a citation of precedents. In the case of a sale or conveyance of goods with a fraudulent design on the part of the vendor, a creditor receiving the same in payment or security of a bona fide indebtedness at a reasonable value or price will not lose the preference thus given him, although he is aware that the transaction itself hinders or delays other creditors in seeking redress against said goods, and that such was the purpose of the debtor, provided the creditor does not further participate in such purpose than by the taking payment of his claim or a proper security therefor. On the other hand, a volunteer purchaser, who gets title to goods sold or conveyed to hinder, delay, or defraud creditors of the vendor in the enforcement of their claims, can acquire no right to the property against such creditors, if he either knew of, or participated in, the purpose of his vendor when the transaction was consummated; and this, too, irrespective of the fact that he may have paid full value for the goods. Nor could he acquire a valid title, if, after such a sale, but before payment of the price, he learned of said fraud, and failed to withhold payment, provided his obligation to pay had not become so fixed, by a transfer of negotiable paper evidencing it, or otherwise, that he could not legally resist its enforcement. It needs only a simple application of these principles to settle the rights of the parties to this suit. The hypothesis upon which the court instructed the jury presupposed proof of fraud by the seller and participancy therein by the buyer, but no proof of fraud by the third party, a creditor of the seller, to whom the notes for the price were assigned in payment or security of a demand against the seller. It follows that the transaction, as far as the seller and purchaser were concerned, was in direct defiance of the statute forbidding sales to hinder, delay, or defraud creditors. As to these two parties, there was a shifting of the title to the goods with intent and purpose on the part of both to put the property beyond the reach of creditors' process. Such a transaction was necessarily voidable at the instance of creditors, irrespective of the payment by the buyer of the full value of the goods, and also irrespective of the fact that the vendor assigned the notes which he received for the price of the goods to the holder of a valid demand against himself. As to the latter party, it is true that he could not be compelled to account to other creditors, as trustee for their benefit, except upon proof of participancy in the fraud of the vendor of the goods. But this exemption on his part does not extend to the other two parties, the buyer and seller of the goods. As to the seller, fraud sufficing to sustain an attachment of his property was shown when proof was made of his intent to fraudulently dispose of any part thereof. Bank v. Lumber Company, 59 Mo. App. 317; Bank v. Powers, 134 Mo., loc. cit. 447, 448
35 S. W. 1132; Bank v. Russey, 74 Mo. App. 651; Glacier v. Walker, 69 Mo. App. 288. Now, when this intent was communicated to a stranger, who at once intentionally aided and assisted in its consummation, did he not thereby necessarily subject the property so taken to the same processes to which it would have been exposed if it had been found still in the hands of the fraudulent vendor? In other...
