Torreyson v. Turnbaugh

• Citation: 79 S.W. 1002,105 Mo. App. 439
• Court: Missouri Court of Appeals
• Decision Date: 01 March 1904
• Parties: TORREYSON v. TURNBAUGH et al.<SMALL><SUP>*</SUP></SMALL>

79 S.W. 1002

105 Mo. App. 439

TORREYSON v. TURNBAUGH et al.^*

St. Louis Court of Appeals. Missouri.

March 1, 1904.

ATTACHMENT—INTERPLEADER—NATURE—EVIDENCE — STATEMENTS OF DEFENDANT — FRAUDULENT CONVEYANCES — ASSENT BY CREDITOR.

1. An interpleader in attachment is in effect a replevin by the interpleader against the attaching creditor for the property levied upon, and the interpleader must establish that he was the owner of the property at the time it was attached, or that he had a special interest therein, and was entitled to its possession.

2. In an interpleader to an attachment against a fraudulent debtor, statements by the attachment defendant to the attaching creditor as to his own financial condition are hearsay, admissions of one not a party to the issue between the interpleader and the creditor, not pertinent to that issue, highly prejudicial to the interpleader, and inadmissible.

3. The acceptance by the creditor of money paid to the debtor by the purchaser for the goods fraudulently transferred, with knowledge

of the source of the sum so accepted, constitutes a ratification of and assent to the sale, and precludes the creditor from afterwards attacking the same as fraudulent.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by C. A. Torreyson against Alex Turnbaugh; W. R. Luster, interpleader. From a judgment for plaintiff, interpleader appeals. Reversed.

Geo. Robertson, for appellant. P. H. Cullen and W. H. Logan, for respondent.

REYBURN, J.

Respondent brought this attachment suit to the January term, 1903, of the circuit court of Audrian county. The petition was subdivided into two counts—the first based upon an agreement by which it was alleged defendant was to convey to plaintiff realty described in Monroe county, subject to an incumbrance not exceeding $1,200, paying up accrued interest and taxes, and permitting plaintiff to have the rental accruing for year terminating March 1, 1903; defendant to receive in exchange a stock of groceries and store fixtures in the city of Laddonia. Plaintiff averred performance of his part of the contract, but charged default by defendant in failing to pay accrued interest and taxes, and not letting plaintiff have rental, which defendant himself collected, and judgment for $215 was prayed. The second count was for balance claimed for merchandise sold and delivered to defendant, amounting to $16.32. The attachment was levied upon the stock of goods referred to in first count. The appellant on the 3d of January, 1903, filed an interplea under the statute (Rev. St. 1899, § 417), duly verified by his affidavit, affirming, in general terms, that at time of the attachment he was the owner of the property, money, effects, and credits attached by the sheriff in the cause, and, reiterating that he was owner of all of the goods, wares, merchandise, fixtures, furniture, and all and every article of personal property attached, prayed judgment for their possession.

The facts divulged at the trial, briefly, were that plaintiff, a merchant at Laddonia, in June, 1902, transferred his stock of merchandise to defendant; the latter giving in exchange therefor the land described in plaintiff's first count, and $375 in money, procured from the Farmers' Bank of Laddonia by discount of a note upon which plaintiff was surety, and subsequently paid. On October 30th of the same year, defendant sold the remaining goods to interpleader, his father-in-law, a resident of California, Mo., who took possession the day succeeding. Payment therefor was made in part by the return and surrender of a note for $250, for money borrowed, executed to appellant by defendant and his brother, and in part to extent of $460 in cash, which appellant or defendant obtained from the Morgan County Bank at Versailles upon a note of appellant secured by mortgage on property in Clarksburg, Mo., owned by appellant's wife. The proceeds of this last loan were applied to discharge the indebtedness of defendant to plaintiff evidenced by the note for $375, on which plaintiff was surety, and had paid; $10, an overdraft at bank, and in payment of costs accrued in first attachment suit brought by plaintiff against defendant; and a balance of $90 of the purchase price remained unpaid defendant by appellant. After maturity of the note for $375, the interpleader, on November 1, 1902, guarantied its payment in consideration of forbearance or extension of its payment for five days, and defendant proceeded to Morgan county to obtain the money on a note secured, as stated, by property of appellant's wife. During his absence the earlier attachment was brought in the circuit court of Audrain county by plaintiff against defendant, in three counts; the first count being identical with first count of the present action, and the second and third counts both based on the note for $375 (and both seeking its recovery) so frequently alluded to. Upon return of defendant from Versailles with money obtained as stated, he settled the pending suit by payment of the $375 and interest, together with court costs —$408 in all—and this action was dismissed under the following stipulation:...