Baughman v. Penn

• Decision Date: 08 May 1885
• Citation: 33 Kan. 504,6 P. 890
• Parties: SAMUEL BAUGHMAN, as Sheriff of Wilson County, v. G. W. PENN
• Court: Kansas Supreme Court

6 P. 890

33 Kan. 504

SAMUEL BAUGHMAN, as Sheriff of Wilson County, v. G. W. PENN

Supreme Court of Kansas

May 8, 1885

Error from Wilson District Court.

REPLEVIN by Penn against Baughman, as sheriff of Wilson county. Judgment for plaintiff, at the February Term, 1884. The defendant brings the case to this court. The opinion states the material facts.

Judgment affirmed.

T. J Hudson, B. M. Short, and C. G. Delano, for plaintiff in error.

S. S Kirkpatrick, and C. C. Chase, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action of replevin, brought by G. W. Penn, to recover from the sheriff of Wilson county the possession of a small stock of goods, which the plaintiff claimed to have purchased from Howard Bros., of Fredonia, Kansas. The sheriff justified under orders of attachment that had been sued out by the creditors of Howard Bros. The sale and transfer of the goods were made about November 9, 1883. For a few months prior to the sale, Howard Bros. had been engaged in the grocery and restaurant business, and their goods, a portion of which is in controversy here, had not been paid for. Some four or five weeks after the sale of the goods to the plaintiff, several of their creditors brought, suits, and caused the goods to be attached as the property of Howard Bros., claiming that the sale to Penn was invalid, and that it was made with the fraudulent purpose of defeating the creditors of Howard Bros. The cause was tried by a jury, and the verdict and judgment were in favor of the plaintiff, G. W. Penn, upholding the validity of the sale and his title and right of possession to the goods. Upon the trial it seems to have been conceded by all that so far as the Howard Bros. were concerned the sale was made with the fraudulent design of defeating their creditors in the collection of their claims. But it is claimed by the vendee, that the purchase was made by him in good faith, without any knowledge or notice of the fraudulent purpose of the vendors. It appears that the plaintiff took immediate possession of the goods under his purchase, and that the consideration claimed to have been paid for them was fair and reasonable. The only question therefore in the court below was, whether the plaintiff was a bona fide purchaser in good faith of the property in controversy.

The counsel for plaintiff in error contend, and argue at some length, that the testimony shows that the vendee had knowledge of the fraudulent intent of the vendors. Upon this question there was some conflict in the testimony, but the jury by their general verdict, and also in answer to special questions, have found in favor of the good faith of Penn, and that he was not chargeable with knowledge of the fraudulent purpose which actuated Howard Bros. in making the sale. The determination of this fact was within the province of the jury, and their finding puts an end to all inquiry thereon in this court. In such a case, as has been so often stated, we cannot weigh conflicting evidence or disturb a verdict, even though the testimony seems to preponderate against it. It is but just to say, however, that after a careful reading of the testimony, which is voluminous, it appears to us to abundantly justify the verdict that has been rendered.

Some objections are made to the rulings of the court upon the instructions refused and given. These objections are somewhat general and desultory in their nature. The defendant prepared a series of six instructions, none of which were given. But the court in its general charge, which was carefully prepared, embodied most of the propositions requested by the defendant. The two remaining ones we think were improper in the case, and rightly refused. In one, the court was asked to direct the jury in effect, that the mere knowledge of Penn that Howard Bros. were indebted, was of itself sufficient to charge him with guilty knowledge of the intention of Howard Bros. to defraud their creditors. Of course, actual knowledge by Penn of the fraudulent purpose of the Howard Bros. was not necessary in order to vitiate the sale. A "knowledge of facts sufficient to excite the suspicions of a prudent man and put him upon inquiry is, as a general proposition, equivalent to a knowledge of the ultimate fact," (Phillips v. Reitz, 16 Kan 396;) and this principle of law the trial court in its charge to the jury clearly recognized and stated. But the mere knowledge of the purchaser that the seller is in debt, without regard to the amount, or his ability to pay the same, will not make void a sale, although the purpose of the vendor was to defraud his creditors, unless the vendee was a participant in the fraud. (Hughes v. Monty, 24 Iowa 499; Atwood v. Impson, 20 N.J.Eq. 150; Beals v. Gurnsey, 8 Johns. 446; Durkee v. Chambers, 57 Mo. 575; Sisson v. Roth, 30 Conn. 15; Loeschigk v. Bridge, 42...