Albert v. Besel

• Decision Date: 31 October 1885
• Citation: 88 Mo. 150
• Parties: ALBERT v. BESEL; REGENHARDT et al., Interpleaders, Appellants.
• Court: Missouri Supreme Court

88 Mo. 150

ALBERT

v.BESEL; REGENHARDT et al., Interpleaders, Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cape Girardeau Court of Common Pleas. HON. R. B. OLIVER, Special Judge.

REVERSED.

Wilson Cramer and E. D. Englemann for appellants.

(1) Regenhardt should have been allowed to state why certain notes were taken up and new ones given in their stead. Bump on Fr. Conv. (2 Ed.) 574; Potter v. McDowell, 31 Mo. 73. (2) The attachment affidavits read in evidence were incompetent. (3) The declarations of Besel, made after the transfer and while his grantees were in possession of the property conveyed, were not admissible against him. Stewart v. Thomas, 35 Mo. 202; Sutter v. Lackmann, 39 Mo. 91; Exchange Bank v. Russell, 50 Mo. 531; Boyd v. Jones, 60 Mo. 471. (4) A debtor may prefer one creditor to another. Shelley v. Boothe, 73 Mo. 74; Daugherty v. Cooper, 77 Mo. 528; Bump Fr. Conv. 178. Nor is such right affected by the creditor's insolvency or the debtor's knowledge of it. (5) In order to make a conveyance fraudulent, the debtor must participate in the fraud. Ryan v. Young, 79 Mo. 32; Forrester v. Moore, 77 Mo. 651; Shelley v. Boothe, 73 Mo. 77. (6) Fraud will not be presumed, and there is nothing to show that interpleaders acted from any other motive than to save themselves from loss. Funkhouser v. Lay, 78 Mo. 462; Massey v. Young, 73 Mo. 273; Henderson v. Henderson, 55 Mo. 534; Rumbolds v. Parr, 51 Mo. 592; Page v. Dixon, 59 Mo 43; Lawson's Presump. Evid., 93, 98 and 439.

J. B. Dennis for respondent.

(1) There is no error in the trial of the cause in the lower court. (2) The several attachment suits were offered to show the probable amount of Besel's indebtedness. (3) Instructions numbered three, four and five given for respondent declare the law as announced by this court. Porter v.McDowell, 31 Mo. 62; Porter v. Stevens, 40 Mo. 229; Claflin v. Rosenberg, 42 Mo. 439; Wright v. McCormick, 67 Mo. 426; Shelley v. Boothe, 73 Mo. 74.

BLACK, J.

The defendant, Besel, on the twenty-second of March, 1883, made a mortgage to Meyer on his stock of goods to secure a debt of four hundred and fifty dollars. Schivelbeine about the same time sued Besel for a debt of four hundred dollars. The appellants, Regenhardt, Kempe and Popp, being sureties for Besel, became alarmed, and on the twenty-sixth of April following purchased Besel's entire stock of goods, agreeing to pay him therefor two thousand one hundred dollars, received a bill of sale, and at once took possession of the property so purchased. In payment therefor they gave their notes to the creditors before named, and thus satisfied the mortgage and pending suit. They also gave their notes to the other persons in payment of debts of Besel and upon which they or one or more of them were sureties. The debts thus assumed, including a rent account, amounted to about $2,000. Two days later the plaintiff brought this suit and attached the property so sold; other creditors brought like attachment suits. The appellants interpleaded for the property setting up their purchase. The plaintiff took issue on the interplea, alleging that the sale was fraudulent. The evidence in general tends to show that the interpleaders paid for the goods the fair value, and that they purchased the same for the sole purpose of protecting themselves, because of their suretyship for Besel on the debts assumed.

They had a perfect right to buy the goods for that purpose, though the purchase might operate to hinder and delay the other creditors in the collection of their demands, and though to their knowledge Besel intended the sale should have that effect, provided they did not participate in the fraudulent purpose of Besel. The instructions given at the request of the interpleaders proceed upon the principles heretofore announced in Shelley v. Boothe, 73 Mo. 74, and Holmes v. Braidwood,82 Mo. 610, and need no special consideration. The first instruction given for the plaintiff placed the burden of proof upon the interpleaders to show that the sale to them was made in good faith and without any intent to defraud the creditors of Besel. The bill of sale is regular on its face. Interpleaders were in possession of the property when the writ of attachment was levied; the plaintiff seeks to show that the sale was fraudulent and, therefore, void as to him. The burden of proof was upon him to show that the transaction was in fact fraudulent, and the instructions should not have been given. Gutzweiler, Adm'r, v. Lackmann, 39 Mo. 91. It makes no difference in this respect that the interpleaders in their interplea say the sale was in good faith. There is really no evidence in the case tending to show that the interpleaders ever agreed to turn back to Besel any part or portion of the goods purchased by them, and for this reason the third instruction given at the request of the plaintiff, which hypothecates in part that state of facts, should not have been given. It is well enough as a proposition of law to say that: “Fraud is seldom susceptible of direct proof, but may be established by a number and variety of circumstances, which though apparently trivial and unimportant when considered separately, may, when combined...