Bice v. Rogers

• Decision Date: 11 November 1893
• Citation: 34 P. 796,52 Kan. 207
• Parties: L. M. BICE v. P. A. ROGERS, as Sheriff of Ness County
• Court: Kansas Supreme Court

34 P. 796

52 Kan. 207

L. M. BICE v. P. A. ROGERS, as Sheriff of Ness County

Supreme Court of Kansas

November 11, 1893

Error from Ness District Court.

ACTION of replevin by Bice against Rogers, as sheriff. Judgment for defendant at the September term, 1889. Plaintiff comes to this court. The opinion states the facts.

Judgment reversed and cause remanded.

N. H Stidger, and Geo. S. Redd, for plaintiff in error:

In cases of fraud, the burden of proof is always on the party alleging fraud; so in this case the burden of proof was on the defendant, to show that the chattel mortgage in question was executed for the purposes alleged in his answer. Angell v. Pickard, 28 N.W. 680; Hombs v. Corbin, 34 Mo.App. 393; Kipps v. Lamereaux, 45 N.W. 1002.

This being the case, if there was any proof submitted by the defendant to show a fraudulent intent upon the part of either the plaintiff or G. D. Bice, it was competent for the plaintiff in the rebuttal to show by witness Bice that no such fraudulent intention existed. See Gardom v. Woodward, 44 Kan. 758. Campbell v. Holland, 35 N.W. 871; Nixon v McKinney, 105 N.C. 23.

Buchan Freeman & Porter, for defendant in error:

It is assigned as error that the court refused to allow witness G. D. Bice to testify as to his intention in executing the chattel mortgage. Our answer to this is, the question as put was too broad, and called for his general intentions. It should have been confined to the question of bona fides. If he had been asked the question directly, "State whether or not you made that chattel mortgage to hinder or defraud or delay your creditors," it might have been admitted. This in substance is the form of the question authorized by all the cases.

In Campbell v. Holland, 22 Neb. 528, the exact question passed on was this: "I will ask you to state whether or not the sale and transfer of this property in controversy was made for the purpose of defeating or hindering any of your creditors in the collection of their debts." In Gardom v. Woodward, 44 Kan. 760, the question was: "He charges you with having assigned your property, or a part thereof, with the intent to hinder, defraud and delay your creditors. Is that true--did you have any such intent?" As Mr. Justice VALENTINE says in that case, the vital question involved was, whether the sale was made in good faith, or was a mere sham. It was not the general intention of the vendor that was competent, but his particular intention on this point; that is, was it his intention to hinder, defraud or delay his creditors?

Further error is alleged because the court overruled plaintiff's offer to prove certain things. This offer was objectionable because it was too broad; it contained an offer to prove by G. D. Bice that L. M. Bice took the mortgage as security, and with no other intention. A witness also is not to be permitted to testify as to the motive by which another person is or has been actuated. Motives are eminently inferences from conduct. Whar. Law of Ev. 508.

In place of making a general offer of what he expected to prove, mingling together questions proper with others improper, the plaintiff in error should have submitted his questions in proper form.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was action of replevin, brought by L. M. Bice against P. A Rogers, as sheriff of Ness county, to recover the possession of a stock of merchandise. The plaintiff claimed a special ownership in the property under a chattel mortgage executed to him by his son to indemnify the father for an indebtedness of over $ 7,000, for which he had become security for the son, and which he was subsequently compelled to pay. The sheriff claimed under an attachment levied at the instance of several of the creditors of G. D. Bice, who alleged and claimed that the mortgage...