Aspinall v. Jones

• Decision Date: 31 October 1852
• Citation: 17 Mo. 209
• Parties: ASPINALL, Plaintiff in Error, v. JONES et al., Defendants in Error.
• Court: Missouri Supreme Court

17 Mo. 209

ASPINALL, Plaintiff in Error,

v.JONES et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1852.

1. Where a debtor fraudulently transfers his stock in trade, the course for the creditor to pursue is, not to sue the transferee on his demand, but to levy upon the property under an execution or attachment against the original debtor.

2. Where A. and B. assign a lease by way of mortgage to secure a creditor, and afterwards, by a fraudulent combination with C. to defraud the creditor, suffer the lease to be forfeited, and C. takes a new lease, the latter will be held a trustee for the benefit of the creditor.

Error to St. Louis Court of Common Pleas.

T. T. Gantt, for plaintiff in error. There was evidence tending to show fraud on the part of Jones which should have gone to the jury.

Todd & Krum, for defendants in error. There was no evidence of any fraud or collusion on the part of Jones. He had a right to accept a new lease, even though he had notice of the sub-lease from Morgan and Van to plaintiff. The forfeiture of the original lease to Morgan and Van necessarily terminated the sub-lease to plaintiff.

SCOTT, Judge, delivered the opinion of the court.

This was a suit under the code, the petition in which alleges that Morgan & Van, who were partners, borrowed from Aspinall, the plaintiff, the sum of fifteen hundred dollars, for the payment of which they executed their promissory note. That Jones was in the employ of Morgan & Van, and was active in procuring the said loan for his employers. To secure the repayment of the loan, Morgan & Van executed, by way of assignment, a sub-lease to the plaintiff of certain leasehold premises which they held from Carrière, Papin and others. This lease, in its terms, was subject to forfeiture for non-payment of the rent, which became due monthly. The note executed by Morgan & Van was dated January 15, 1850, and was payable ninety days after date. Jones, though no party to the note or to the lease, was active in procuring the loan; he was present when Morgan & Van refused to deliver up the original lease to the plaintiff, saying they wished to put it upon record. That the lease never was recorded, but was fraudulently with-held from record by Morgan, Van and Jones; that on the day the note became due, the original lease was fraudulently surrendered to the lessors, and a new lease, on the same terms as those of the original lease, was executed to Jones for the unexpired term; that, at the same time, Jones, by a pretended sale, contrived to defraud the creditors of Morgan & Van; took from them their stock in trade, the only consideration for which was his coöperation in their scheme to defraud their creditors; that Morgan & Van obtained the loan with a fraudulent intent, and that Jones was an active participant in all their measures, and was fully aware of the existence of the sub-lease to the plaintiff, and that a show of a surrender was made, instead of taking an assignment of the lease from Morgan & Van, to cover the fraud that was practiced on the plaintiff; that Jones was a partner of Morgan & Van.

The defendants, Morgan & Van, suffered judgment by default on notice by publication. Jones answered, denying that he was more than clerk for Morgan & Van at the time of the transaction; that he did nothing but as clerk, and received no part of the money borrowed; that he was no party nor privy to any contrivance to defraud the plaintiff; that he was no partner of Morgan & Van; that after the lease was duly forfeited for non-payment of rent, according to its terms, he took a lease for the unexpired term, on his own account. There was a denial of all...