Enders v. Richards

• Decision Date: 31 March 1863
• Citation: 33 Mo. 598
• Parties: WILLIAM F. ENDERS et al., Respondents, v. THOMAS RICHARDS, Appellant.
• Court: Missouri Supreme Court

33 Mo. 598

WILLIAM F. ENDERS et al., Respondents,

v.THOMAS RICHARDS, Appellant.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Circuit Court.

Strong and Wood, for appellant.

I. The proof is abundant that Redding was a creditor and one who had come forward very generously to aid Richards, without any expectation of profit. Such a creditor it was not only right for Richards to secure, but it was his duty to do so. Such preferences are sustained by ample authority. (Kuykendal v. McDonald, 15 Mo. 415, 420.)

The only testimony introduced to impeach the deed to Redding's trustee was the statements of Richards after the deed was executed and the property turned over to the trustee.

It would be a dangerous precedent to allow a grantor to invalidate his own conveyance, after its execution and delivery, by his own declarations. The law does not allow him to do this as a witness under oath--much less should he be allowed to do this by his unsworn declarations. (2 R. C. 1577-8.)

The case was tried upon the theory that a conveyance calculated or designed “to hinder or delay creditors” would sustain the attachment. This is not the law; it must be a “fraudulent conveyance with intent to hinder or delay creditors.” It may be designed to hinder and delay some creditors; but if made with the intent and for the purpose to secure other bona fide creditors, it is not fraudulent, and does not authorize an attachment. (Kuykendal v. McDonald, 15 Mo. 415; Chouteau & Vallé v. Beach et al., 11 Mo. 385; Duval v. Barnum, 7 Mo. 449.)

It is therefore not an unimportant inquiry whether the title to the goods was or was not vested by the deed attacked in the vendee; not that it will affect his title in this suit, but to show the character of the deed. If it was fraudulent it conveyed no title. If it conveys a title it is not fraudulent, and if not fraudulent it will not sustain this attachment.

Lackland, Cline & Jamison and Bell, for respondents.

I. The court did not err in admitting the evidence objected to by defendant. The decision of the Circuit Court upon the questions admitting the evidence was correct and within the principle laid down by this court in the following cases, to wit: Lane v. Kingsbury, 11 Mo. 402; Field & Beardslee v. Liverman, 17 Mo. 218; Carson v. Murray, 15 Mo. 383.

II. The objections of defendant to admission of evidence are not well taken, because the bill of exceptions does not show any grounds for the objections. (Field v. Hunter, 8 Mo. 128; Bank of Missouri v. Bank of Baltimore, 10 Mo. 123; Duvall v. P. & S. Ellis, 13 Mo. 203; Rousin v. Perpetual Ins. Co., 15 Mo. 245; Clark v. Conway, 23 Mo. 438; Grimm v. Gamache, 25 Mo. 41.)

Where the instructions taken all together properly present the law of the case to the jury, the judgment of the Circuit Court will not be disturbed, although the instructions taken separately may be objectionable. (Williams v. Vanmeter, 8 Mo. 339; Neal v. McKinstry, 7 Mo. 128; Gamache v. Piquignot, 17 Mo. 310; Swearingen v. Orme, 8 Mo. 707; State v. McClure, 25 Mo. 338; Hall v. Webb, 28 Mo. 414.)

Although an instruction be given, which, standing alone, may not apply to all the facts in the cause, the judgment will not be reversed for that reason. (Neal v. McKinstry, 7 Mo. 128.)

Although an instruction may be erroneous, if it could not have been prejudicial to the party complaining, the judgment will not be disturbed. (Hall v. Webb, 28 Mo. 414.)

BATES, Judge, delivered the opinion of the court.

This is a suit by attachment. The affidavit stated as the ground for the attachment that the defendant had “fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors.” The defendant traversed that allegation, and the issue thus made was tried by a jury and found for the plaintiff. The only questions presented in the case were made at that trial.

The court instructed the jury for the plaintiffs as follows:

1. If the jury believe from the evidence that at the time of the commencement of this suit defendant had conveyed or assigned any of his property or effects for the purpose of hindering or delaying any of his creditors in collecting their debts, or for the purpose of inducing his creditors to compromise or compound their debts against him by taking less than the amount really due, or for the purpose of inducing any of his creditors to grant him an extension of time for the payment of their debts against him, they will find for the plaintiffs.

2. Although the jury may believe that the deed of trust dated July 5, 1859, a copy of which has been read in evidence, was executed by defendant for the purpose of securing bona fide debts due from defendant to George Redding and others, and that said Redding and the trustee named in said deed may have acted throughout that transaction in good faith, yet if they find that any part of the purpose of the defendant in making said deed was to keep off his creditors, or to hinder and delay them in collecting their debts against him, or to cover up his property from them, they will find this issue for the plaintiffs.

3. The only issue this jury have to try is, whether the facts stated in plaintiffs' affidavit are true or not. The title of the goods attached is entirely...