Bay v. Sullivan

• Decision Date: 31 March 1860
• Citation: 30 Mo. 191
• Parties: BAY, Respondent, v. SULLIVAN et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 191

BAY, Respondent,

v.SULLIVAN et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. If a third person voluntarily convey a chattel to a trustee in trust for the separate use of the wife of another, it will be held free and clear of all claims of the creditors of the husband; to constitute the transaction fraudulent as against the creditors of the husband, the consideration must come from the husband.

2. Where the instructions given to the jury fully state the law applicable to the facts, the refusal of other instructions asked will not be error, although such instructions may be correct.

Appeal from St. Louis Circuit Court.

This was a suit for the value of a horse. The horse was sold by a constable under two executions, one in favor of Sullivan, the other in favor of Westcott, both of whom are parties defendant in this suit. The levy was made by order of both of the defendants. Upon claim being made by the plaintiff in this suit, separate bonds were given to the constable, who proceeded to make sale. At the trial the defendants separately moved that they might be separately examined as witnesses, each in behalf of his co-defendant. The court refused so to rule. The plaintiff read in evidence the certificate of record of the bill of sale of said horse by Talbot to Bay. The remaining facts are sufficiently set forth in the opinion of the court.

A. J. P. Garesché, for appellants.

I. It was error to allow the reading of the certificate of record. It imparted no notice of sale. (15 Mo. 416.) The defendants should have been permitted to be sworn in each other's behalf. (Sess. Acts, 1857, p. 180; 9 How. Pr. R. 389; 10 Id. 389; 19 Barb. 317.)

Bay, for respondent.

I. The court very properly refused to permit defendants to testify for each other. They were co-trespassers. The court did not err in giving or refusing instructions.

SCOTT, Judge, delivered the opinion of the court.

J. S. Talbot conveyed a horse to the plaintiff Bay in trust for the sole and separate use of Flora Byrne, the wife of Edmond Byrne. In the instrument of conveyance it is recited that the sale of the horse was in consideration of one hundred and thirty dollars paid by Flora Byrne and the sum of one dollar paid by the trustee Bay. The horse thus conveyed to Bay was levied on by the constable by the direction of the defendant Sullivan, who had an execution against Edmond Byrne, the husband of Flora Byrne. The horse was sold, and this suit was brought to recover in damages his value. There was a verdict for the plaintiff. The court instructed the jury to the effect that if the horse was purchased of Talbot with money of Dr. Byrne, and was conveyed by Talbot to Bay as trustee of Flora Byrne for the purpose of avoiding the creditors of Dr. Byrne, and that the constable...