85 F. 408 (8th Cir. 1898), 939, Badgett v. Johnson-Fife Hat Co.

Docket Nº:939.
Citation:85 F. 408
Case Date:February 14, 1898
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 408

85 F. 408 (8th Cir. 1898)




No. 939.

United States Court of Appeals, Eighth Circuit.

February 14, 1898

This is an action by attachment by the Johnson-Fife Hat Company against J. D. Blosser, in which W. R. Badgett interpleaded, claiming the property attached by virtue of a deed of general assignment made by Blosser to him prior to the attachment. A judgment against the interpleader was affirmed by the court of appeals for the Indian Territory and he brings the case on error to this court.

William T. Hutchings, for plaintiff in error.

John B. Turner, and James B. Burckhalter (George B. Denison and N. B. Maxey, on the brier), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge.

On the 9th of November, 1894, one J. D. Blosser, a merchant of Chelsea, Cherokee Nation, Indian Territory, executed and delivered a deed of assignment to the interpleader, W. R. Badgett, conveying to him, in trust, the goods and merchandise in question. The deed conveyed all the property of the sad assignor for the benefit of creditors, with preferences, as was permissible under the statute regulating assignments applicable to that territory. This deed was delivered to the assignee perhaps the day following its execution, but the inventory and bond required by statute to be made out by the assignee were not filed with the clerk of the court until November 24, 1894. The deed of assignment contained the following provision:

Page 409

'That the said Badgett shall first, and before taking possession of, or controlling, said property, comply with the law as to the inventory and bond, as provided in such cases. He shall then, pursuant to law, proceed to sell the goods, wares, merchandise, and fixtures, and to collect the notes and accounts and other indebtedness, and with the proceeds of said sales and collections pay to my creditors as follows.'

On the 16th day of November, 1894, the defendant in error, Johnson-Fife Hat Company, instituted suit against J. D. Blosser to recover a debt of $212.35, which action was aided by an attachment proceeding under which the goods and merchandise in question were seized. On May 9, 1895, W. R. Badgett, plaintiff in error, filed in said cause his interplea, claiming the ownership and possession of said property under the assignment aforesaid. On the issues tried between these parties to a jury there was a verdict and judgment against the interpleader. From that judgment an appeal was prosecuted to the court of appeals of the territory, where the judgment of the court below was affirmed. 38 S.W. 667. To reverse this judgment the interpleader brought the case to this court on writ of error.

The only questions presented for review, under the assignment of errors, arise on the giving and refusing to give certain instructions on the trial and as to the admission of certain evidence. The instruction refused is as follows:

'The court instructs the jury that the deed of assignment offered in evidence in this case is valid on its face, and vested the legal title to the property in controversy in this suit in the assignee named therein and the interpleader herein, W. R. Badgett, unless some fraud on the part of the assignor, J. D. Blosser, prior to or contemporaneous with the execution of the deed, known to and participated in by the assignee, W. R. Badgett, invalidated it. If, therefore, the deed of assignment in question was free from fraud at the time of its execution and delivery, no subsequent agreement between the assignor and assignee to disregard it, and no subsequent fraudulent acts on their part with respect to the assigned property, will invalidate it.'

The instructions given by the court complained of are as follows:

'The court instructs you that although there is a clause in the deed of assignment offered in evidence in this case which...

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