Burgert v. Borchert

Decision Date31 January 1875
Citation59 Mo. 80
PartiesLEVI BURGERT et al., Appellants, v. WILLIAM BORCHERT, et al., Respondents.
CourtMissouri Supreme Court

Appeal from Bates Circuit Court.

Henry Flanagan, for Appellants.

I. Communications between the parties to, and concurrent with, transactions between them and which relate to such transactions and are calculated to explain the nature thereof, are admissible in evidence as part of the res gestæ. (Eastman vs. Bennett, 6 Wis., 232; 1 Greenl. Ev., § 108, et seq.)

II. Every circumstance calculated to aid in determining whether the intent to defraud existed, should have been given to the jury.

III. The declarations of parties in possession of personal property, especially if such declarations be against the interest of the party making them, are competent evidence. (State vs. Schneider, 35 Mo., 533; Howell vs. Howell, 37 Mo., 124.)

So also are such declarations admissible in evidence, when they explain the character of the declarant's possession, as that he held in his own right, or in the right of another, etc. (Darrett vs. Donnelly 38 Mo., 492, and cas. cit.)

IV. To make a sale of personal property good against creditors of the vendor, the vendee must take actual posession; that possession must be open and unequivocal, having the usual indications of ownership by the vendee, so as to notify the world of his claim; and this possession must be continuous. (Claflin vs. Rosenburg, 42 Mo., 439; Engles vs. Marshall, 19 Cal., 320.)

V. The first instruction given on behalf of the interpleaders is not the law. It does not embody the language of the statute. It requires the jury to find that the conveyance was made with the intent to cheat, hinder and delay the creditors of Borchert. The statute is in the disjunctive. (Pilling vs. Otis, 13 Wis., 495.)

VI. Under the second instruction for the interpleaders, the attaching creditors were required to prove a combination and confederation between the vendor and vendee to hinder and delay the creditors. An intent to do either, or both, is not sufficient. If this instruction be law, the statute against fraudulent conveyances is simply a delusion. Proof of the intent is sufficient, and that intent is to be ascertained from all the circumstances of the case. (Reed vs. Pellitier, 28 Mo., 173; 3 Greenl. Ev., § 13.)

VII. The writ of attachment and the return of the sheriff thereon, are a part of the record and conclusive as to the matters therein contained, unless upon a direct proceeding against the officer for a false return. (12 Mo., 527; 2 Wis., 99.)

Page & Holcourt, for Respondents, among other points urged the following:

I. The sheriff's return was not evidence of the possession of the property. Certainly the sheriff could not decide this case by a return of the writ of attachment.

II. The court properly refused to allow appellants to introduce witnesses to prove the statemeuts of Borchert. This is an action between Burgert, Adams & Co., and Smith and Clark interpleaders. Borchert had, by his solemn deed, parted with the property in dispute, and he had no more power to impress the title, by either his acts or his declarations, than any other mere stranger.

Such declarations are only hearsay. Besides the court allowed the testimony of Borchert, impeaching his solemn act, to go to the jury. Certainly the appellants have no cause for complaint. (Grantham vs. Thomas, 35 Mo., 202.)

SHERWOOD, Judge, delivered the opinion of the court.

Under attachment proceedings instituted by Burgert, Adams & Co., certain wares and merchandise were levied on by the sheriff, as belonging to the defendant, Burchert, which were subsequently claimed by Smith & Clark, who interpleaded for the same. There were very many suspicious circumstances attendant upon the alleged transfer to Smith & Clark, and much conflict of testimony at the trial, which resulted in a verdict in favor of the interpleaders. We will first examine the instructions given at their instance:

I. The language of the statute, (1 Wagn. Stat., 280, § 2.) in relation to fraudulent conveyances, etc., prohibits the transfer of lands, goods, chattels, etc., with intent to hinder, delay, or defraud creditors, etc.

The first iustruction given on behalf of the interpleaders was objectionable, as it failed to employ the words of the statute, and was erroneous, because it substituted others in their stead, requiring the jury to find that the conveyance was made with intent to “cheat, hinder and delay” creditors, before they could deem it void.

The statute, it will be observed, is in the disjunctive, and attaches a separate and specific meaning to each of the words which it employs, while the instruction requires the jury to find the existence of a triple intent, to cheat, hinder and delay, before the could hold the conveyance void. (Pilling vs. Otis, 13 Wis., 495.) The court below, certainly could not have borne the provisions of the statute in mind, when giving sanction to such an unwarrantable instruction. Thus instructed, the jury, rationally enough, might find that an intent existed to obstruct creditors in the collection of their debts, and also, to defer the payments which were due them, without finding that the debtor cherished the knavish design to prevent the ultimate collection of the debt.

II. It was wholly unnecessary to prove any combination or confederation between the defendant and interpleaders to hinder or delay, etc., creditors. It was sufficient under the statute, to show that an intent, such as the statute prohibits, prompted the transfer, and moved its execution on the part of those who participated therein. It was not essential to establish any formal or premeditated design, to accomplish the illegal purpose. It was quite enough to establish either directly or indirectly, that the participators in the transaction were actuated by a motive which the law respecting fraudulent conveyances inhibits, and when such a motive is shown to exist, it is entirely immaterial how valuable a consideration may have been paid by the transferree; the law puts the stamp of its disapprobation on the sale and pronounces it void. For this reason the second instruction, on which we have been commenting, was erroneous. (Reed vs. Pillitier, 28 Mo., 173.)

III. While it is undoubtedly true as a general legal proposition that “fraud is not to be presumed, but must be proved by the party alleging it,” yet it is equally true, that fraud is seldom capable of direct proof, but for the most part has to be established by a number and variety of circumstances, which, although apparently trivial and unimportant, when considered singly, afford, when combined together, the most irrefragable and convincing proof of a fraudulent design. (See case decided at last March Term.) It would have been better, therefore, had the third instruction gone further, and informed the jury what constituted fraud within the meaning of the law under discussion, and told them that although it devolved on the party...

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