Feary v. O'Neill

• Decision Date: 28 March 1899
• Parties: FEARY v. O'NEILL.
• Court: Missouri Supreme Court

50 S.W. 918

149 Mo. 467

FEARY v. O'NEILL.

Supreme Court of Missouri, Division No. 2.

March 28, 1899.

FRAUDULENT CONVEYANCES — ASSIGNMENT FOR CREDITORS — ACCEPTANCE — EVIDENCE — DECLARATIONS — WITNESSES — INSTRUCTIONS — APPEAL — OBJECTIONS.

1. The statement of an insolvent debtor, who had transferred a stock of goods to a trustee for the benefit of certain of his creditors, is not admissible to show fraud, in replevin by the trustee against an attaching officer, when such statement was written long after the trustee had taken possession under the deed.

2. It cannot be urged for the first time on appeal that evidence properly excluded as generally incompetent should have been admitted for the purpose of impeachment.

3. Where there is no evidence that a witness used any artifice to mislead a party calling him, such party cannot introduce evidence to discredit him.

4. On an issue whether a conveyance is fraudulent as to creditors, the court need not define "fraudulent" in instructing as to "fraudulent design" and "fraudulent intent."

5. Preferred creditors named in a deed of trust made directly to a trustee for their benefit, and by him accepted, are presumed to have accepted it.

6. Evidence that a deed of trust for the benefit of certain creditors was made to an agent of three of the largest creditors, and accepted by him as their agent, is sufficient proof of acceptance of the deed in replevin by the trustee against an attaching officer.

7. A failure to instruct on propositions not requested is not error.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Replevin by George D. Feary against John P. O'Neill. From a judgment for plaintiff, defendant appeals. Affirmed.

Karnes, Holmes & Krauthoff, for appellant. Joseph A. Guthrie and Ellis, Reed, Cook & Ellis, for respondent.

GANTT, P. J.

This is an action of replevin for a stock of shoes which Albo Miller had owned as a retail merchant at No. 101 East Twelfth street, in Kansas City, Mo., up to December 3, 1894. On that day, being indebted to various persons for goods sold to him and for money loaned, and to his clerks and employés for services, he conveyed, by a deed of trust in the nature of a chattel mortgage, to George D. Feary and his successors in said trust, and their assigns, all of said stock, with the right upon default to take immediate possession of said goods, and sell the same in any manner he should see fit, and, after paying first the costs of executing said trust, he should pay the indebtedness secured by said deed in proportion to the amounts of the said notes, and the balance, if any, to said Miller. This deed was duly executed and acknowledged and recorded on December 3, 1894, at 12:05 p. m. All of said notes being due, demand was made, and default occurred on said day, and thereupon the trustee, Feary, at once took possession of said goods, and locked the store, and put up notices that the stock was in his possession under said deed. That afternoon, after plaintiff had taken possession, the defendant, O'Neill, as sheriff of Jackson county, attached said stock under a writ of attachment in a suit by Barton Bros. against Albo Miller, and said goods were afterwards replevied in this action by the trustee against the sheriff. On the trial in the circuit court the verdict of the jury and judgment of the circuit court were for the plaintiff for possession of the property and one cent damages. Other facts will be noted in the further discussion of the case.

1. The written statement of Albo Miller, made long after the plaintiff, Feary, had taken possession of the goods under the sale and transfer, was incompetent against the grantee or trustee. Weinrich v. Porter, 47 Mo. 293; Stewart v. Thomas, 35 Mo. 202; Albert v. Besel, 88 Mo. 150. No question is made of the soundness of this general principle, but it is now claimed the said statement was offered for the purpose of contradicting and impeaching Miller, whom defendant had called as a witness, and who testified differently from said statement. No such purpose was indicated when the evidence was offered. Moreover, a party is not allowed to discredit his own witness; that is, he cannot introduce evidence whose sole purpose is to discredit his witness. Brown v. Wood, 19 Mo. 475; Chandler v. Fleeman, 50 Mo. 239; Claflin v. Dodson, 111 Mo. 195, 19 S. W. 711; Dunn v. Dunnaker, 87 Mo. 597; 1 Greenl. Ev. § 442. There was no evidence tending to show that Miller used any artifice to entrap or mislead the defendant into calling him as a witness. No showing of surprise, by affidavit or otherwise, was made, taking the case out of the general rule already announced, and it was properly excluded. State v. Burks, 132 Mo., loc. cit. 374, 34 S. W. 50, is not authority for admitting this statement made out of court.

2. The court, in behalf of plaintiff, instructed the jury as follows: "(1) The court instructs the jury that any fraudulent intent that Albo Miller might have had in making the deed of trust in evidence is not enough to vitiate it. It devolves upon the defendant in this case to show by tangible evidence that the plaintiff, Feary, participated in such fraudulent intent, if any, and purposely aided Albo Miller to defeat his other creditors by covering up the property of Albo Miller in some improper way, to the use and benefit of the said Miller. (2) The jury are instructed that, although fraud need not be proven by direct testimony, and may be inferred from circumstances, still it will never be presumed, but must be proven by some tangible and substantial facts in evidence, from which it may be fairly inferred; and in this case the burden is on the defendant to show by a preponderance of the testimony that Albo Miller fraudulently executed the chattel deed of trust offered in evidence, and that the plaintiff, Feary, participated in such fraud; and, if the facts and circumstances shown in evidence are as consistent with an honest purpose on the part of said Feary as with the dishonest one, then it is your duty to believe his purpose honest. (3) The court instructs the jury that, even though Miller was in failing circumstances, he had a right to prefer any one or more of his creditors to the exclusion of the rest, although his doing so operated to defeat his other creditors in the collection of their claims; and if the plaintiff, Feary, took the deed of trust in evidence for the purpose of securing the debts therein named, and did not know of and participate in some fraudulent design of the said Miller, if he had any, the deed of trust is valid, and you must find for the plaintiff." To which action and ruling of the court in giving said instructions the defendant at the time duly excepted, and still...