Bruce ex rel. Pullis v. Sims

• Citation: 34 Mo. 246
• Parties: GEORGE BRUCE, TO THE USE OF REUBEN PULLIS, Respondent, v. WILLIAM M. SIMS et al., Appellants.
• Decision Date: 31 October 1863
• Court: United States State Supreme Court of Missouri

34 Mo. 246

GEORGE BRUCE, TO THE USE OF REUBEN PULLIS, Respondent,

v.WILLIAM M. SIMS et al., Appellants.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Montgomery Circuit Court.

Howell, Ricketts and Hardin, for respondent.

The instructions given and refused were as follows:

1. Fraud cannot be presumed, but must be proven to the satisfaction of the jury.

2. If the jury find for the plaintiff, they ought to assess his damages at the value of said slave at the time of the seizure of the same under the executions, and also allow him interest, as damages on said value, at the rate of six per cent. per annum, from the day of such seizure to this date.

3. Although the jury may believe that Davis, at the time he sold said slave to Pullis, did so with the intent to hinder, delay and defraud his creditors, yet the jury ought not, for that reason, to find against plaintiff, unless they are satisfied from the evidence that the plaintiff joined and concurred with Davis in such intent. And the court granted the same, as prayed for by the plaintiff; to which ruling of the court, in granting the same, the defendant objected and excepted.

The defendants prayed the following instructions, numbered one, two, three, four, five, six, seven, and eight; but the court refused the fifth instruction, as prayed for, to which ruling of the court defendants saved their exception:

1. Before the jury can render a verdict for the plaintiff in this cause, they must be satisfied from the evidence that the plaintiff was the purchaser of said negro from Davis, for a valuable consideration, and that said sale was made in good faith.

2. If they find, from the facts and circumstances in this case, that said negro was put into the hands of Pullis for the purpose of preventing the same from being taken by the creditors of Davis, in execution for their debts, the same is fraudulent and void as against the defendants in this case, and they are bound to find for the defendants.

3. If they believe, from the evidence, that said bill of sale was made and accepted in order to cover up said property from Davis' creditors, or to hinder or delay his creditors, then said bill of sale is fraudulent, and said property was liable to the execution, and they must find their verdict for the defendants.

4. The jury are required and bound to take into consideration all the facts and circumstances in evidence in this case, and they may find, from the circumstances of the case, that the sale of the negro was not in good faith, but was fraudulent.

5. If the jury find, from the evidence, that said negro was redeemed, and the mortgage to Ridgway was paid off with partnership money, or with a note given by Abat for partnership money, then Davis had an interest in the negro which was subject to sale under the executions of the defendants, and the plaintiff cannot recover in this action without there has been a settlement of partnership accounts, and Davis was found to have no interest in the partnership.

6. Although fraud cannot be presumed, but must be proved, yet it is not necessary that it be proven by direct testimony. The jury may find fraud to exist from circumstances alone.

7. If Davis, by the conveyance, intended to defraud, hinder or delay his creditors, and Pullis was aware of his intention, and received the conveyance with a view of delaying such creditors, the transaction is fraudulent, whatever consideration may have passed between them.

8. The petition and amended or supplemental petition of Pullis, read in evidence by the defendants, should be considered as an admission in the case, and the jury may believe any part thereof, and may disbelieve the balance. They are not bound to regard the whole of it alike.

Craddock, Gordon, Henderson and Hayden, for appellant.

Lackland, Cline & Jamison, for respondent.

I. The court did not err in excluding the deposition of Thomas J. Davis. (Kobbe v. Landecker, 32 Mo. 170; Parish v. Frampton, 32 Mo. 396; Caldwell v. Garner, 31 Mo. 131.)

II. The first instruction given by the court for plaintiff is correct. This instruction, with the fourth and sixth instructions given for the defendants, placed the question fairly before the jury. (See the instructions given in the following cases: Robinson's Exr's v. Robards, 15 Mo. 463; Field & Beardslee v. Livermore, 17 Mo. 221; Littleton, Interpleader, v. Beach & Eddy, 14 Mo. 163.)

III. Instructions for plaintiff on the measure is correct. (Dozier v. German, 30 Mo. 221; Sedgwick on Dam's, 393-405.)

The court properly refused to give the fifth instruction.

1. Because there was no proof to support it. There is no proof whatever that partnership funds were given by Pullis for the note of Abat.

2. Suppose the slave had been paid for or redeemed with co-partnership funds, or a note given for such funds, it is not easily perceived how that would make the negro co-partnership property.

3. The answer presents no such question. There is no defence upon the ground that the negro was co-partnership property. The only defence set up in the answer, is that the negro was not...