Finnell v. Million

• Decision Date: 27 April 1903
• Citation: 74 S.W. 419,99 Mo. App. 552
• Court: Missouri Court of Appeals
• Parties: FINNELL v. MILLION.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 419

99 Mo. App. 552

FINNELL v. MILLION.^*

Court of Appeals at Kansas City, Missouri.

April 27, 1903.

FRAUDULENT CONVEYANCES—EVIDENCE—ADMISSIBILITY—REPLEVIN AGAINST OFFICER BY GRANTEE — INSTRUCTIONS — HARMLESS ERROR—INVITED ERROR.

1. In replevin for property levied on by defendant, an officer, wherein plaintiff claimed under a bill of sale from the execution defendant, his son, which was alleged to be in fraud of the son's creditors, it was not error to admit in evidence two mortgages of the same property executed by the execution defendant to plaintiff, and also claimed to be in fraud of creditors, together with testimony that payments had been made on one of them which had not been credited, and that the other, though discharged, had not been satisfied of record.

2. The admission of mortgages executed by the execution defendant to other persons, though irrelevant and immaterial, was not prejudicial to plaintiff.

3. Where, in replevin for hogs, the alleged sale of the hogs by the judgment debtor to plaintiff was denied, and it was claimed that such sale, if made, was fraudulent as to the debtor's creditors, and the jury returned a verdict for defendant, plaintiff was not prejudiced by the refusal of the court to permit him to prove the cost of feeding and caring for the hogs while they were in his possession under the writ.

4. Plaintiff could not object on appeal to instructions given at defendant's request, which were the same, in substance, as other instructions asked and given for him; the error, if any, being invited.

5. In replevin against an officer for property levied on, which plaintiff claimed under a prior bill of sale, the wrongful taking and detention of property by defendant is not to be presumed, but must be proved.

Appeal from Circuit Court, Atchison County; Gallatin Craig, Judge.

Replevin by Simpson Finnell against George Million. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Jno. P. Lewis, for appellant. Hunt & Bailey and T. S. Stevens, for respondent.

BROADDUS, J.

This is a replevin suit, begun on the 7th day of January, 1902, for the recovery of 55 tons of hay, about 100 head of hogs, 1 corn binder, and 1 hay loader, all of the alleged value of $920. The defense is that the defendant levied upon and held the said property under and by virtue of a certain execution issued out of the office of the clerk of the circuit court of said county on October 30, 1901, upon a judgment in favor of one Floyd J. Sullivan against one William Finnell for $2,073.77, rendered September 24, 1901; that plaintiff was not the owner of said property at the time said execution was levied thereon, but that said William Finnell was the owner of the same; and that prior thereto, viz., on the 28th day of September, 1901, the said William Finnell (who is the son of the plaintiff), and the plaintiff conspired together with the fraudulent intent of hindering, delaying, and defrauding the creditors of the said William, and, for the fraudulent purpose of concealing and covering up said property of said William so that his creditors could not reach it, the said William executed to the plaintiff a pretended bill of sale of the same. The answer sets up several mortgages executed by the son—two to plaintiff, and others to different parties—all of which are alleged to have been made, with the knowledge of plaintiff, for the purpose on the part of the maker to defraud his creditors. The plaintiff's evidence tended to show that said bill of sale was made in good faith and for a valuable consideration, without any knowledge on his part of any fraudulent intent upon the part of said William to hinder, delay, or defraud his creditors. The plaintiff, on cross-examination, stated, among other things, that he did not know of the said bill of sale until after it had been executed, and that he did not require one to evidence the sale, but that, when he found out that his son had made one, he obtained it and put same on record. It was shown that said William had been plaintiff's tenant for the year 1901, and several years prior thereto; that at the time he claims to have purchased the property in controversy he had a settlement with his son, and that the son agreed to turn over to him the property in extinguishment of certain indebtedness; that, as evidence of transfer of possession, he had the hogs branded with his mark and turned into a feed lot on the premises occupied by William that he had reserved for his own use; that the other property was left on the place. It was shown that the hogs, when seized, were running at large on the rented premises. The plaintiff's excuse for not removing the hogs was that they had cholera, and he did not think it safe to take them to his own place, for fear of communicating the disease to his other hogs. The evidence tended to show that the sale of the property to plaintiff was real, though for a past consideration. The two mortgages to the...