Dunn v. Henley

• Citation: 24 Mo.App. 579
• Parties: CHARLES M. DUNN, Appellant, v. JAMES A. HENLEY, Respondent.
• Decision Date: 08 February 1887
• Court: Court of Appeals of Kansas

24 Mo.App. 579

CHARLES M. DUNN, Appellant, v. JAMES A. HENLEY, Respondent.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Cass Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

Statement of case by the court.

On the twenty-sixth day of January, 1885, Martin Bailey began a suit by attachment, in the Cass circuit court, against E. H Yarnell, to recover the amount which he had paid to Aultman & Company, as surety for Yarnell on a note given by the latter to Aultman & Company for the purchase price of a certain machine, called a separator, mentioned hereinafter. James A. Henley, as sheriff, seized, under a writ of attachment issued in said suit, the following property, as the property of said Yarnell: One steam engine and one C Aultman & Miller separator, one water tank, two wagons two sets of wagon harness, two horses and one mule. While in the possession of James A. Henley, as sheriff, the plaintiff instituted in said circuit court the present action of replevin against Henley to recover possession of said property.

The defendant justified as sheriff under the writ of attachment. The defendant also pleaded specially, that Aultman &amp Company had had a vendor's lien under our statute to secure the payment by Yarnell of the purchase price of the separator in controversy; that, when Bailey, the plaintiff in the attachment suit, paid the note given by Yarnell to Aultman & Company, for the purchase price of such separator, said Bailey became subrogated thereby to the rights of Aultman & Company, and entitled to a vendor's lien on said separator; that Bailey had obtained a judgment in the attachment suit finding that Aultman & Company had been entitled to a vendor's lien on the separator to secure the payment of said note, and declaring said Bailey to be subrogated to all the rights of Aultman & Company in that behalf. The defendant in the present case further alleged in his answer, in that connection, that the plaintiff herein claimed the possession of said separator by virtue of a pretended chattel mortgage executed by said Yarnell; that at the time of the execution of said mortgage the plaintiff had full knowledge of all the facts thereinbefore set out concerning the vendor's lien on the separator and Bailey's right thereto; and that by reason of the premises the defendant was entitled to the possession of the separator by virtue of the writ of attachment, and the judgment rendered in said circuit court.

The defendant, during the trial of this case, was permitted to introduce in evidence the pleadings filed and the judgment rendered in the said attachment suit. To which the plaintiff objected, on the ground that such evidence was incompetent and immaterial, since he had not been a party to said attachment suit.

The defence made by the defendant as to the property other than the separator was made on the theory that the plaintiff's mortgage was fraudulent and void, and that, therefore, he had the right to hold the property under the writ of attachment aforesaid.

The court gave the following instructions at the request of the plaintiff:

" 1. If the jury believe and find from the evidence that E. H. Yarnell executed the chattel mortgage read in evidence, and that the property therein described and thereby mortgaged, was attached and taken into possession by the defendant, under the writ of attachment, in the case of Bailey v. Yarnell, read in evidence, then the jury should find for the plaintiff, except as to the separator mentioned in evidence, unless the jury shall further believe and find from the evidence that said mortgage was executed by said Yarnell fraudulently, and for the purpose of hindering or delaying his creditors in the collection of their debts, and not for the purpose of securing a bona fide debt to the said plaintiff; and that said plaintiff, when he received said mortgage, was cognizant of, or participated in, such fraudulent purpose, or had knowledge of such facts as would put an ordinarily prudent man upon inquiry."

" 2. The burden of proving fraud in this case depends upon the defendant. Fraud is never presumed, but must be proven, but it may be shown by facts and circumstances; and if the jury believe that the facts and circumstances connected with the execution of the mortgage made by said Yarnell to the plaintiff, consists as well with honesty as with a fraudulent purpose and intent, the jury should find for the plaintiff."

The court gave for the defendant, among others, the following instructions:

" 2. 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 fraudulent design; and the requisite proof need not be of a direct or positive character, but may be gathered from the surrounding circumstances. If, therefore, the jury believe from the evidence and circumstances detailed herein, that E. H. Yarnell executed and delivered to plaintiff the mortgage read in evidence for the purpose or with the intention of hindering, delaying, or defrauding Martin Bailey, or any of the other creditors of said E. H. Yarnell, and at the time said Yarnell executed and delivered to plaintiff the mortgage aforesaid, the latter (plaintiff) knew of such purpose or intent on the part of said Yarnell, or was in possession of facts sufficient to put an ordinarily prudent man upon inquiry concerning such purpose or intent, they will find for the defendant, notwithstanding they may believe from the evidence that plaintiff loaned said Yarnell the whole or any part of the money mentioned in evidence."

" 5. The court instructs the jury that they are the sole judges of the credibility of witnesses, and of the weight to be given their testimony herein; and in determining such credibility and weight they should take into consideration the appearance of the witnesses, their interest, if any, in the result of the case, the probability or improbability of any of their statements, in the light of surrounding circumstances, and the other facts in the case. And if the jury believe that any witness has knowingly sworn falsely to any material matter in issue, they are at liberty to disregard the whole or any part of the testimony of such witness."

From a judgment in favor of the defendant the plaintiff has appealed to this court.

WOOLDRIDGE & DANIEL, for the appellant.

I. The court erred in admitting in evidence the petition and answer, and the findings or recitals in the judgment in the case of Bailey v. Yarnell. They were clearly irrelevant and incompetent, and the jury were not told that they were not evidence against the plaintiff, who was a stranger to the action. All the proceedings therein were had after the execution of the mortgage to plaintiff. 1 Greenl. on Evid., sect. 527; Harrington v. Wadsworth, 1 New Eng. Rep. 49; Freeman on Judgments (1 Ed.) p. 134, sect. 162.

II. The court erred in giving the second instruction asked by the defendant, by invading the province of the jury, and indicating to them, by implication, at least, that the circumstances shown in evidence afforded " the most irrefragable and convincing proof of a fraudulent design" on the part of the plaintiff. The jury are the judges of the weight of the evidence, and they must have understood the instruction as referring to the facts and circumstances shown by the evidence, as well as by the " surrounding circumstances." It was not the province of the court to declare, as a matter of law, what or what character of evidence would or would not constitute or " afford irrefragable and convincing proof of fraudulent design." Unruh v. State ex rel. Baum, 2 West. Rep. 632, and cases cited infra; Jones v. Marsh, 52 Md. 323; Mason v. Poulson, 40 Md. 355; Railroad v. Mati, 3 Cent. Rep. 903. It was also error to instruct the jury that " the proof of fraud might be gathered from surrounding circumstances." Their attention should have been confined to the circumstances shown in evidence. The latter clause of the instruction is wrong. It is no objection to the validity of a conveyance by a debtor to his creditor, that it operates to hinder and delay other creditors, that it was made with the intent on the part of the debtor that it should so operate, and that the creditor receiving it was aware of that intent, provided he received it with the purpose of securing his debt. Shelley v. Boothe, 73 Mo. 74; Holmes v. Braidwood, 82 Mo. 610, 616, and cases cited; Bump on Fraud. Conv. (2 Ed.) chap. 7, tit. " " Preferences," p. 178, et seq.; Chouteau v. Sherman, 11 Mo. 385; Cason v. Murray, 15 Mo. 378; Kuykendall v. McDonald, 15 Mo. 416; Dietrich v. Hutchinson, 29 N.W. 247; 23 Cent. Law. Jour. 440, 441, and cases cited.

III. Instruction number three, given on the part of the defendant, is erroneous, in that it tells the jury that if Yarnell executed the mortgage for the purpose of hindering, delaying, or defrauding his creditors, and if the plaintiff received the mortgage with knowledge of such intent, such mortgage was fraudulent, although the plaintiff had loaned the money the mortgage was given to secure. Shelley v. Boothe, and Holmes v. Braidwood, supra; 23 Cent. Law Jour., supra.

IV. The court should not have given instruction number five asked by defendant, for it invades the province of the jury. It tells the jury that, as a matter of law, they must take into consideration the appearance of the witnesses, in determining the weight of their evidence and their credibility. It commands the jury to discredit a witness if he makes a poor or bad appearance, and to credit him if his appearance is fine or good. The jury should...