Forrester v. Moore

• Decision Date: 30 April 1883
• Citation: 77 Mo. 651
• Parties: FORRESTER v. MOORE, Plaintiff in Error.
• Court: Missouri Supreme Court

77 Mo. 651

FORRESTER

v.MOORE, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1883.

Error to Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Higbee & Shelton for plaintiff in error.

Knott & Caywood for defendant in error.

PHILIPS, C.

This is an action of replevin instituted in 1877 by Forrester, the defendant in error, to recover the possession of a portable saw mill of the alleged value of $1,000. Moore was the acting sheriff of Schuyler county, and as such had levied on this mill as the property of one Wm. Buford, under several writs of fi. fa. issued on judgments in favor of different creditors against the partnership firm of Gray and others, of which Buford was a member.

Defendant's answer tendered the general issue, except as to his possession, and then justified under the writs of execution, and averred that the mill, at the time of the seizure, was in Buford's possession, that Buford was the owner thereof. On the trial, Buford testified that the mill belonged to plaintiff; that in 1872 he owed plaintiff a note for $1,550, and in 1873, finding his firm to be in failing circumstances, in order to secure plaintiff, he deeded to his son, who was also plaintiff's son-in-law, 120 acres of land in Putnam county. In 1875, the plaintiff consented that said land might be traded to one Shively for the mill in question, if Buford would take the mill for him and run it.

The bill of sale therefor was made to plaintiff, and Buford took the same to run it with the privilege of paying off the note of $1,550 out of the earnings of the mill if he could, or with the privilege of selling it for such purpose. He testified that it was an honest, bona fide sale, etc., and he was corroborated by the testimony of the plaintiff. The mill proved unprofitable. Buford had retained possession of it up to the time of seizure, as did plaintiff Buford's note. Something had been paid on the note. Plaintiff stated, inter alia, that when Buford should pay off the note, he supposed the mill would be his, though there was no agreement to that effect. He had paid no taxes on the mill. The bill of sale of the saw mill to plaintiff was duly acknowledged, but not recorded. This was the substance of plaintiff's evidence.

The only evidence offered by defendant was the judgments and executions under which the levy was made. They bore date in 1877.

The court, of its own motion, gave six instructions, and the defendant asked nine additional instructions, which the court refused. The jury found the issue for plaintiff, and defendant has brought the case here on writ of error. The errors complained of by defendant are the refusal of his instructions. This renders it necessary to incumber this report with their reproduction. Those given by the court are as follows:

1. The court declares, from the testimony, that the property in controversy is personal property.

2. If the jury believe from the evidence that Wm. Buford was indebted to Lewis Forrester in the sum of $1,550, and that Wm. Buford became involved, and in good faith, for the purpose of better securing this debt, deeded a tract of land in Putnam county to one Henry Buford, who was the son of Wm. Buford and the son-in-law of Forrester, for the purpose of said Henry holding the aforesaid tract in trust for the benefit of Forrester, and if the jury believe from the evidence that afterward the said Henry Buford, with the consent of Forrester, deeded said land to one Shively for the mill in question, and that a bill of sale was taken for the same in the name of Forrester, the jury should find for the plaintiff.

3. Wm. Buford had a right to prefer any one or more of his creditors in good faith, although said preference may have operated to hinder and delay other creditors.

4. Although the jury may believe from the testimony, that Wm. Buford, in securing Forrester, may have intended to defraud his other creditors, still if they believe from the testimony that Forrester did not participate in such design and acted in good faith, then the preference was not fraudulent.

5. If, however, the jury believe from the evidence that Wm. Buford was insolvent or largely indebted, and for the purpose of hindering or delaying, or cheating or defrauding his creditors, he deeded the said land to Henry Buford, and afterward, for the same purpose or with the design of further carrying out said fraudulent purpose, traded said land for the mill in question, and for the purpose afterward took the bill in evidence to Forrester, then the jury should find a verdict for defendant.

6. In determining the question of the good or bad faith of the transaction, the jury may consider all the facts and circumstances detailed in evidence. The burden of proving the fraud is upon defendant.

Defendant then prayed, but the court refused to give, the following instructions:

7. If the jury believe from the evidence that Wm. Buford deeded the land in Putnam county to his son, Henry Buford, in fact to secure Buford's note of $1,550 to Forrester, and that Wm. Buford traded said land, by plaintiff's consent, to Shively for the saw mill in controversy, and by Buford's direction, Shively executed the bill of sale of said mill to plaintiff, and that it was intended by plaintiff and Buford that said bill of sale should be a security for the payment of said note, and that the mill was not in fact taken as a payment on said note, and that said mill was not in fact delivered to plaintiff, but to Buford, and that Buford took actual possession of and retained said mill till levied on by defendant, under executions against Buford, then said bill of sale was in fact a mortgage, and not being recorded was void against Buford's creditors, and the verdict will be for defendant.

8. If the jury believe from the evidence that under the bill of sale, Buford, by Forrester's consent, took possession of the mill, and had power, by agreement with Forrester, to sell the same and receive the proceeds, then said bill of sale is void, and the verdict will be for defendant.

9. If the jury believe from the evidence that the bill of sale was intended in fact as a mortgage, and the mill was in fact delivered to Buford, although there may have been an understanding or agreement between Forrester and Buford, that Buford received actual possession of the mill as agent for Forrester, but that Buford was to have the use and possession of said mill for his own use and benefit, and Buford has ever since had actual possession and used and operated the same as his own, and Forrester has never had actual possession of it, such bill of sale operated as a mortgage on personal property, and not being recorded, was void against all creditors prior and subsequent to the date of said bill of sale, and the finding will be for defendant.

10. If the jury believe from the evidence that plaintiff executed an absolute deed of conveyance to his son Henry of the land in Putnam county, for the purpose of securing an indebtedness to plaintiff, and was at the time of making such deed insolvent and unable to pay his debts, as they fell due in the ordinary course of business, such deed is a badge of fraud.

11. If the jury believe from the evidence that plaintiff, in securing an indebtedness to Forrester, conveyed the land in Putnam county, which they believe was an excessive amount of property, over and above what was sufficient to secure said indebtedness, then such conveyance raises a presumption that Buford intended to secure the use of said property to himself and baffle his creditors, and is a badge of fraud, and if they further believe from the evidence that the indebtedness of Forrester was at the time amply secure under any and all contingencies, and so known to Forrester, without the security on the Putnam county land, they will find for defendant.

12. If the jury find from the evidence that in 1870 or 1871, Buford and Reed gave Forrester a note for $1,550, as a balance due on a sale of a farm in Schuyler county, sold by Forrester for $4,550; that Forrester suffered said note to remain unpaid until the year 187--, when Buford voluntarily deeded the land in Putnam county to his son Henry, (plaintiff's son-in-law,) for an expressed money consideration, but in fact intending it as a security for the above mentioned note, without plaintiff's knowledge or request; that plaintiff suffered said note to remain unpaid until September, 1875, when, at Buford's request, the said land was traded to Shively for the saw mill in question, and that plaintiff has suffered said note to remain unpaid to the present time, and has taken no steps to collect said note, and that Buford has been insolvent all that time; then, all such transactions are badges of fraud, and circumstances for the consideration of the jury, and unless plaintiff has shown to the jury, by a preponderence of the evidence, that all such transactions are fair and honest, and in good faith, and that such delay in enforcing the collection of said note has not been, in whole or in part, for the purpose of enabling Buford to cover up or conceal his property and withhold it from the reach of his creditors, then the finding will be for defendant.

13. The court declares that the fact that a bill of sale was executed for the mill from Shively to Forrester; that it recited a consideration different from that actually paid for it, and the fact that the bill of sale has not been recorded, are each badges of fraud, and raise a presumption in law that such transactions are fraudulent, and unless plaintiff, by a preponderance of the testimony, satisfies the jury that the bill of sale was taken in good faith and for an honest purpose, and the consideration recited therein was not varied from the true consideration for the purpose of deceiving any of Buford's creditors, or for any dishonest purpose, or that Forrester has not omitted to have said bill of sale recorded for any purpose of giving Buford a false or fictitious credit or of...