Blue v. Penniston

• Decision Date: 31 July 1858
• Citation: 27 Mo. 272
• Parties: BLUE, Appellant, v. PENNISTON, INTERPLEADER, Respondent.
• Court: Missouri Supreme Court

27 Mo. 272

BLUE, Appellant,

v.PENNISTON, INTERPLEADER, Respondent.

Supreme Court of Missouri.

July Term, 1858.

1. Where a suit is commenced by attachment on a promissory note and a person interpleads, claiming the property attached as trustee for the wife of the defendant in the attachment, by virtue of a deed executed and recorded two years before the date of the note sued on, the plaintiff may show that the note sued on was given for a debt that existed before the execution of said deed.

2. The acts of the grantor (the father of the cestui que trust in said deed) and her husband (the defendant in the attachment suit), in selling certain of the slaves embraced in said deed, are competent evidence as bearing upon the question of fraud in its execution.

Appeal from Linn Circuit Court.

This was a suit by attachment upon a promissory note executed by John K. Kerr, dated February 20, 1845. A negro woman and her two children were attached as the property of said Kerr. Francis P. Penniston interpleaded, claiming said slaves as trustee for Mrs. Kerr, by virtue of a deed executed by Robert P. Penniston, the father of Mrs. Kerr. This deed was dated February 28, 1843. It was acknowledged and recorded the day of its date, and conveyed certain slaves to said interpleader in trust for the separate use of Mrs. Kerr. Evidence was introduced showing that the slaves embraced in said deed had been in possession of said John K. Kerr for several years before the date of said deed. Evidence was also introduced bearing upon the question whether there had been a gift of said slaves to Mrs. Kerr. The plaintiff offered to show that the note sued on was given for a debt that existed previous to the execution of the said trust deed of R. P. Penniston. The court refused to permit the evidence to be introduced.

The court, among other instructions given at the instance of the interpleader, gave the following: “3. The acts of Robert Penniston and John K. Kerr in selling Ellen, one of the slaves mentioned in the deed, are no evidence to invalidate the deed.”

The jury rendered a verdict for the interpleader.

Harris, for appellant.

I. The court erred in excluding the evidence offered by plaintiff. He should have been permitted to show that the debt for which the note was given was contracted prior to the execution of the deed of trust. (James v. Briscoe, 24 Mo. 504; 4 McCord, 232.)

II. The court erred in giving and refusing instructions. (5 Mo. 493; 13 Mo. 67; 24 Mo. 504; 22 Mo. 341; 7 Mo. 249.)

Prewitt, for respondent.

I. It is immaterial whether the debt sued on was created before or after the execution of Penniston's deed. The question in issue was whether the father had given the slaves to his daughter some two or three years before making the deed. The plaintiff should have shown the materiality of the offered testimony. (15 Mo. 244.)

II. The third instruction was correct. The court did not err in giving or refusing instructions. (R. C. 803; 16 Mo. 114; 25 Mo. 301; 14 Mo. 354; 25 Mo. 301; Hill on Trustees, 419.)

NAPTON, Judge, delivered the opinion of the court.

Upon a more careful examination of the case since the argument, we have not been convinced of the propriety of excluding the testimony offered to show the true date of the plaintiff's debt. The evidence, it is conceded, was competent, and the only ground of its exclusion was irrelevancy. This is rather unsafe ground when the question at issue is one of fraud--a matter about which there is seldom to be found direct and positive proof. The only question in this case was, whether the deed of Robert Penniston was an after-thought, a contrivance to defraud some creditor or creditors of Kerr. To enable ...