8 S.W. 564 (Mo. 1888), Sexton v. Anderson

Citation:8 S.W. 564, 95 Mo. 373
Opinion Judge:Black, J.
Party Name:Sexton, Interpleader, v. Anderson et al., Appellants
Attorney:E. Smith, S. Turner and C. B. Sebastian for appellants. Boyle, Adams & McKeighan also for appellants. S. C. Douglass for respondent.
Case Date:June 04, 1888
Court:Supreme Court of Missouri
 
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Page 564

8 S.W. 564 (Mo. 1888)

95 Mo. 373

Sexton, Interpleader,

v.

Anderson et al., Appellants

Supreme Court of Missouri

June 4, 1888

Appeal from Boone Circuit Court. -- Hon. G. H. Burckhartt, Judge.

Affirmed.

E. Smith, S. Turner and C. B. Sebastian for appellants.

(1) The answer to the amended interplea avers that at the time of the conveyance to Elisha Sexton and Bush, by the firm, of their stock in trade, etc., the firm was insolvent, and that such insolvency was known to the grantees; and that the sale was made by the firm, and accepted by Elisha Sexton, in contemplation of such insolvency, and with the intention of hindering, delaying, and defrauding, the other creditors of the firm in the collection of their debts. This, under long-established practice, is a proper issue in matters of this nature. Kneeland on Att., sec. 334; Bobb v. Woodward, 50 Mo. 95; Ryland v. Callison, 54 Mo. 513. And if the averments of the answer were sustained, the conveyance was void under section 2497, Revised Statutes of Missouri, in relation to fraudulent conveyances. (2) Instructions one, two, and nine given by the court do not in any respect touch the question of the fraudulent character of the bill of sale, on account of its having been made and accepted with intent to hinder, delay, and defraud creditors, which question was directly in issue, and to sustain which evidence was offered and admitted. In cases where the terms of a conveyance are by possibility consistent with good faith and it has upon it the elements of a legal instrument, the question of fraudulent intent and want of good faith in making it must be submitted to the jury. Brooks v. Wimer, 20 Mo. 507; Shepherd v. Trigg, 7 Mo. 151; Ross v. Crutsinger, 7 Mo. 249; Potter v. McDowell, 31 Mo. 62; Chouteau v. Valle, 11 Mo. 390; Claflin v. Rosenberg, 42 Mo. 439; Henson v. Tootle, 72 Mo. 632; 1 Wade on Attach., sec. 96. (3) Instructions numbered three, four, and seven asked by appellants should have been given by the court. Bank v. Carter, 38 Pa. St. 446; Hailstrom v. Eames, 31 Me. 93; Sibley v. Hood, 3 Mo. 290. (4) The court also erred in refusing to give instructions numbered five, six, and eight asked by appellants.

Boyle, Adams & McKeighan also for appellants.

(1) The court erred in refusing and giving instructions. (2) The court should have found as a matter of law that the transaction in question was fraudulent and void as to the creditors of Sexton Brothers & Company. State v. Bank, 2 Mo.App. 102; Kitchen v. Reinsky, 42 Mo. 427; Lionberger v. Baker, 88 Mo. 447; Wilson v. Robertson, 21 N.Y. 587; Ferson v. Monroe, 21 N.H. 462; Tenney v. Johnson, 43 N.H. 144; Bump on Fraud. Con. 464, 487. (3) The court should have found for appellants and rendered judgment accordingly. Wright v. McCormick, 67 Mo. 426; Pierce v. Merritt, 70 Mo. 275. The conveyance was to all intents and purposes a deed of assignment. Douglass v. Cissna, 17 Mo.App. 44; Ring v. Ring, 12 Mo.App. 88; Crow v. Beardsley, 68 Mo. 435.

S. C. Douglass for respondent.

(1) Instructions numbered one and two, as to the kind or character of possession required, on the part of the respondent, stated the law very strongly against him and exacted a greater degree of proof than was necessary for his recovery. If the bill of sale was void on its face, possession by respondent, before the levy, cured all defects, and entitles him to recover in this action. Greeley v. Reading, 74 Mo. 309; State ex rel. v. Cooper, 79 Mo. 464. (2) It devolved on the defendants in the interplea to show that the interpleader had more than mere knowledge or information of the insolvency or fraudulent purpose of his debtors in the transfer of their property to himself and Bush. Shelley v. Boothe, 73 Mo. 77; Dougherty v. Cooper, 77 Mo. 528; Frederick v. Allgaier, 88 Mo. 603. (3) One partner cannot apply the partnership funds to the discharge of his own private debt without the assent or consent of his copartners. But it is equally true that...

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