82 Mo. 610 (Mo. 1884), Holmes v. Braidwood

Citation:82 Mo. 610
Opinion Judge:PHILIPS, C.
Party Name:HOLMES et al. v. BRAIDWOOD; HUISKAMP et al., Interpleaders, Appellants.
Attorney:Hagerman, McCrary & Hagerman for appellants. George Hall for respondents.
Court:Supreme Court of Missouri
 
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Page 610

82 Mo. 610 (Mo. 1884)

HOLMES et al.

v.

BRAIDWOOD; HUISKAMP et al., Interpleaders, Appellants.

Supreme Court of Missouri.

October Term, 1884

         Appeal from Grundy Circuit Court. --HON. G. D. BURGESS, Judge.

         AFFIRMED.

         Hagerman, McCrary & Hagerman for appellants.

         The court erred in saying to the jury that if the Huiskamps had knowledge of Braidwood's intent to defraud the conveyance was fraudulent. It was admitted that interpleaders were in good faith creditors. In such case a mere knowledge of a fraudulent intent on the part of the grantor does not avoid the conveyance. The grantee must participate in the fraud. This is the modern and now well settled rule. Shelley v. Boothe, 73 Mo. 74; Kohn v. Clement, 58 Ia. 589; Anderson v. Warner, 5 Ill.App. 416; Butler v. White, 25 Minn. 432; Olmstead v. Mattison, 45 Mich. 617. Knowledge of the vendee only avoids the transfer where there is a new purchase, and it cuts no figure where the transfer is to secure or pay debt. The suit was begun by George P. Holmes & Co.; the verdict was for George Holmes, and the judgment was for George P. Holmes & Co. This was unwarranted, as no substitution was made, and the question was directly raised by the motions for new trial and in arrest. The evidence offered by respondent, consisting of conversations between respondent's counsel and defendant's counsel, was inadmissible. Declarations of a grantor are only admissible on two grounds: That they are part of the res gestae, (Bump on Fraud. Con., (2 Ed.) 563,) or that it is explanation of the possession. Ib., 569; Burrill on Assign., (4 Ed.) 613. These authorities show that the declaration must be made before the sale.

         George Hall for respondents.

         The instructions declared the law correctly. Noble v. Blount, 77 Mo. 235; Blewett v. Railroad Co., 72 Mo. 583; Stale v. Hopper, 71 Mo. 425. Appellants cannot complain of an error in respondents' instruction which they helped to produce, and which is also contained in their own instructions. Noble v. Blount, supra; Davis v. Brown, 67 Mo. 313; Leabo v. Goode, 67 Mo. 126; Ames v. Gilmore, 59 Mo. 80. A conveyance which is void in part as being given to hinder, delay or defraud creditors, is void in toto. Hyslop v. Clark, 14 Johns. 464; Werden v. Howes, 10 Conn. 50; Tickner v. Wiswell, 9 Ala. 305; Goodrich v. Downs, 6 Hill 438; Rosswell v. Winne, 37 N.Y. 591; Daugherty v. Cooper, 77 Mo. 528. The alleged error as to the verdict is without merit. Neil v. Dillon, 3 Mo. 59. The court did not err in admitting the evidence offered by plaintiffs as to the conversation between the defendant Braidwood and plaintiffs' attorney. Exchange B'k v. Russell, 50 Mo. 531; Burgert v. Borchert, 59 Mo. 80.

         PHILIPS, C.

         This action was instituted in a justice's court. Plaintiffs brought action by attachment under which certain goods were seized as the property of defendant, Braidwood. Huiskamp & Bro., partners, interpleaded, claiming to be the owners of the goods. On trial had in the justice's court, the issues were found for the plaintiffs. Interpleaders appealed to the circuit court, where on trial de novo, the plaintiffs again obtained a verdict and judgment, from which interpleaders prosecute this appeal.

          The evidence on the part of interpleaders tended to show, in fact it was admitted by plaintiffs, that at and before the date of the attachment Braidwood was largely indebted to interpleaders. The evidence of interpleaders further showed that said debtor, prior to the attachment, turned over said goods to them under a written bill of sale in payment of said indebtedness and for the benefit of one Mrs. Lambert, and that interpleaders had taken possession of the goods.

         The evidence on the part of plaintiffs, so recites the bill of exceptions, " tended to show that the bill of sale was executed and the goods in controversy turned over by Braidwood to interpleaders with intent to hinder, delay and defraud his creditors, and that Huiskamp & Bro., interpleaders, had knowledge of such intent. Plaintiffs, also, introduced evidence tending to show that at the time their note, upon which suit was brought...

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