Arnholt v. Hartwig

• Decision Date: 30 April 1881
• Citation: 73 Mo. 485
• Parties: ARNHOLT v. HARTWIG et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 485

ARNHOLT

v.HARTWIG et al., Appellants.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Bucnanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Allen H. Vories for appellants.

Plaintiff did not pay the money until after the levy of the attachment, and notice thereof, and hence is not an innocent purchaser to be protected by the courts. Bishop v. Schneider, 46 Mo. 472; Rice v. Bunce, 49 Mo. 234; Paul v. Fulton, 25 Mo. 156; Aubuchon v. Bender, 44 Mo. 560; Nantz v. McPherson, 7 B. Mon. 597; Digby v. Jones, 67 Mo. 104. The giving of the check by Arnholt to Fredericks, and ordering the banker not to pay the same until further orders, and not paying it from January 3rd to 26th, was not a payment, and such conduct did not entitle him to the goods. Paul v. Fulton, 25 Mo. 163; High v. Batte, 10 Yerg. 186; Christie v. Bishop, 1 Barb. Ch. 105; Murray v. Ballou, 1 Johns. Ch. 566; Wormley v. Wormley, 8 Wheat. 449; Sweet v. Titus, 67 Barb. 327; Kermeyer v. Newby, 14 Kas. 164; Larue v. Cloud, 22 Gratt. (Va.) 513; Stevens v. Park, 73 Ill. 387; Phillips v. Bullard, 58 Ga. 256; Howard v. Jones, 33 Mo. 583.

Strong & Mossman for respondent.

It is only when the vendee has notice of a fraudulent intent on the part of the vendor before parting with anything of value, or when he makes a voluntary payment after such notice that he is deprived of protection as an innocent purchaser. Even this is a rule applied only in favor of a legal or equitable title, interest or lien to the land or property itself. Here it is sought to be applied in aid of a creditor without right, interest, lien or claim on the property, to enable him to collect a debt. In order to enable a subsequent purchaser to set aside a conveyance of property of which he has knowledge at the time of his purchase, the statute requires that it “appear that the grantee in such conveyance, or person to be benefited by such charge, was party or privy to the fraud intended.” R. S., § 2498. An attaching creditor occupies no more favorable footing. Actual notice was not enough to set aside the sale. Arnholt must be either “a party or privy to the fraud intended.” R. S., § 2498; Gentry v. Robinson, 55 Mo. 260; Little v. Eddy, 14 Mo. 160; Byrne v. Becker, 42 Mo. 264; Jones v. Talbot, 4 Mo. 279; Sibly v. Hood, 3 Mo. 290; Potter v. Stevens, 40 Mo. 229. The sale was absolute. Arnholt was bound by his contract to pay his check when his partner returned. The title passed, and the possession was taken. The fact that he subsequently paid the check in compliance with his contract cannot taint with fraud a contract already consummated, which was free from suspicion of it when made.

B. F. Loan also for respondent.

HENRY, J.

The appellants were creditors of one Fredericks, and instituted a suit by attachment, under which the property in controversy was seized as that of Fredericks, and Arnholt filed his interplea claiming the same. The grounds for the attachment alleged in the affidavit were that the defendant had fraudulently conveyed, had fraudulently disposed of and was about fraudulently to dispose of his property and effects so as to hinder and delay his creditors. Before the levy of the attachment the interpleader, Arnholt, had purchased of Fredericks and taken possession of the property in controversy, and given Fredericks his check on his banker for $500 in payment therefor, requesting Fredericks not to present it for payment until Arnholt's partner, who was absent, returned, and also instructed the banker not to pay it until further directions from him. After notice of the attachment, the check, by Arnholt's direction, was paid to Fredericks. There was evidence tending to prove that Fredericks sold the property for the purpose of hindering and delaying his creditors, and it may be conceded that at the time of the purchase Arnholt had no knowledge that such was Fredericks' purpose, and the question then arises whether notice to him of the attachment before the check on his banker was paid deprived him of the character of a bona fide purchaser?

We are of opinion that it did. “No one but a purchaser for a valuable consideration can claim title to property which has been fraudulently assigned against the action of an attaching creditor. Such purchasers are protected upon the equitable principle that they should not be deprived of that which they have honestly and without notice of any fraud bought and paid for in fair dealing with the person holding the legal title. But the consideration must, in all cases, be actually passed before notice. Unless payment has been actually made in some shape, the authorities...