Field v. Liverman

• Decision Date: 31 October 1852
• Court: Missouri Supreme Court
• Parties: FIELD & BEARDSLEE, Defendants in Error, v. LIVERMAN, Plaintiff in Error.

17 Mo. 218

FIELD & BEARDSLEE, Defendants in Error,

v.LIVERMAN, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1852.

1. Upon the trial of an issue as to the fraud of the defendant in an attachment suit, evidence of the statements of a third person, in whose favor the defendant had confessed a judgment, was held admissible against the defendant, where the plaintiffs offered to prove, and afterwards did prove, that such third person, under circumstances which tended to show a connivance with the defendant, ordered the sheriff to suspend a levy of the execution issued upon the judgment so confessed, and that it was kept suspended until the writ of attachment was issued.

2. It is a fraudulent disposition of property, within the meaning of the attachment act (R. C. 1845), for a person to confess a judgment with intent to hinder and delay his creditors, by having his property held up under an execution issued upon the judgment. Where the plaintiff in an execution directs the sheriff to suspend a levy until further orders, and keeps it suspended until crowded by younger executions or attachments, his execution will be held constructively fraudulent against such subsequent executions or attachments.

Error to St. Louis Court of Common Pleas.

This was a suit by attachment begun October 22, 1851, on an account amounting to $279.41, for ready made clothing sold by the plaintiffs, who were wholesale dealers, to the defendant, who was a retail dealer. The grounds of attachment alleged in the affidavit were, that Liverman was about to remove his property out of the state; that he had fraudulently conveyed his property; and that he was about to conceal or dispose of his property so as to hinder and delay his creditors. Defendant filed his statutory plea traversing each of these allegations. Upon the trial of the issues thus made, the plaintiffs, after introducing some evidence tending to sustain the allegations of fraud, offered to prove by Archibald Young certain statements of Julius Mitchell, in 1849, to which the defendant objected. The plaintiffs then offered in evidence a confession of judgment made by defendant in favor of Mitchell, for $970, dated July 6, 1850, and an execution of same date, with the sheriff's return thereon; and upon the declaration of the plaintiffs that they intended to show a levy of this execution upon defendant's goods, and a stay of proceedings by Mitchell's directions, the court permitted the witness, Young, to go on and state his conversations with Mitchell.

David H. Bishop, a witness for plaintiffs, testified that he was deputy sheriff of St. Louis county in the fall of 1850; that when he went to the store of defendant to levy Mitchell's execution, he found Mitchell there, who, after some conversation with the defendant, instructed witness to suspend a levy until further orders; that nothing was done under Mitchell's execution, until the attachment in this suit was placed in the hands of the sheriff, when Mitchell directed a levy.

It was further shown that Mitchell was a brother-in-law of the defendant.

The defendant offered evidence tending to show that Mitchell had made advances to him to assist him in his business. He also offered evidence to show various payments by him to his creditors between July and October, 1850, which last was excluded by the court.

The plaintiffs then asked the following instructions, which were given by the court.

1. If the jury believe from the evidence that, at the time the writ of attachment was sued out in this case, defendant was about to remove his property out of the state, or that he had fraudulently conveyed his property, or was about to conceal or dispose of his property and effects fraudulently, so as to hinder or delay his creditors, then, in either case, the jury ought to find for the plaintiffs.

2. If the jury believe from the evidence, that the judgment and execution given in evidence were confessed and sued out for the purpose of covering the property of the defendant for his use from his creditors, or partly for such purpose, as well as for securing an indebtedness to Mitchell, then, in either case, the jury ought to find for the plaintiffs.

3. If the jury believe from the evidence, that Mitchell directed the sheriff not to levy his execution until he should direct him, and did not direct him to levy until he learned of the issuing of the attachment of Field & Beardslee, from this, together with the lapse of time since the issuing of the execution, the jury may infer that the object of the judgment and execution was, at least in part, to cover the property of the defendant for his use from his creditors.

4. Evidence that produces in the minds of the jury a reasonable satisfaction or belief of fraud will warrant their verdict thereof, and fraud may be proved by circumstantial as well as direct evidence.

To the giving of these instructions the defendant excepted.

For the defendant, the court gave the following instructions:

The jury are instructed by the court, that there are the following issues in the case: 1. Whether Liverman, at the time of the issuing of the attachment in this case, was about to remove his property and effects out of this state with the intent to hinder or delay his creditors. 2. Whether Liverman, at said time, had fraudulently conveyed his property so as to hinder or delay his creditors. 3. Whether Liverman, at said time, was about to conceal or dispose of his property or effects fraudulently, so as to hinder and delay his creditors, and in the consideration of this case, the jury are confined to the foregoing issues, and must find their verdict thereunder. No other charges of fraud can be regarded by the jury, than those specified in the affidavit of the plaintiff for the said attachment. Therefore, if the jury believe from the evidence that the defendant was not about to remove his property and effects out of this state with intent to hinder or delay his creditors, that the defendant had not fraudulently conveyed his property with intent to hinder or delay his creditors, and that defendant was not about to conceal or dispose of his property or effects fraudulently, so as to hinder or delay his creditors, then the jury are instructed that it is their duty to find for the defendant.

3. The jury are instructed that the frauds charged by the plaintiffs in this case, must be proved by evidence satisfactory to the jury, and the burden of such...