Gowan's Adm'r v. Gowan

• Decision Date: 31 July 1860
• Citation: 30 Mo. 472
• Parties: GOWAN'S ADMINISTRATOR, Appellant, v. GOWAN, Respondent.
• Court: Missouri Supreme Court

30 Mo. 472

GOWAN'S ADMINISTRATOR, Appellant,

v.GOWAN, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. Where a debtor deposits personal property in the hands of another as bailee with a view fraudulently to protect it from his creditors, such bailee can not avail himself of such fraudulent intent to defeat an action brought against him by the debtor for the recovery of such property.

Appeal from Moniteau Circuit Court.

This was an action for the possession of a female slave named Sylvia and her three children. The suit was commenced November 18, 1857. The defendant, Rebecca Gowan, in her answer denies the right of the plaintiff to the possession, and sets up the statute of limitations. The testimony adduced in support of the issues is set forth in the opinion of the court. The court, at the instance of the defendant, gave the following instructions among others: “1. If the jury believe from the evidence that A. P. Gowan was in debt in Tennessee, and brought the negro Sylvia to this state, and delivered her to A. G. Gowan, or he afterwards obtained possession of her and kept her by the consent of A. P. Gowan, to avoid payment of his debts, or to hinder or delay his creditors, they must find for defendant. The law in such case leaves the possession where it finds it, and will not assist the party intending the fraud, or his representatives, in regaining the possession. 4. If the jury are satisfied from the evidence that A. P. Gowan gave the negro Sylvia to A. G. Gowan, and that he took possession of said negro at the time of the gift, or afterwards, by virtue of said gift and by A. P. Gowan's consent, they must find for defendant; and in such case no bill of sale was necessary to pass the title, nor is it material that A. P. Gowan obtained the negro in right of his wife.”

It is deemed unnecessary to set forth the voluminous instructions--fifteen in all--given in addition to the above.

Parsons & Ewing, for appellants.

I. There was no pretence that the appellant's intestate ever parted with his title to Sylvia, unless it was by the alleged gift. Admitting even the alleged fraudulent intent, still A. G. Gowan was only a bailee, or depository, not a creditor, or grantee. Neither he, nor persons claiming under him, could set up the fraud to defeat the recovery by the absolute owner. (2 South. 742; 2 Hayw. 408.) It is admitted that where the absolute title to the property is passed with a fraudulent intent as to creditors, the grantor is without remedy, but that is not the case presented by the record. (Smoot v. Wathen, 8 Mo. 524.) The court erred in giving instructions to the jury. A. P. Gowan had no notice of any adverse claim. Statute would not run until then. (Keeton's heirs v. Keeton's Adm'r, 20 Mo. 530; 8 Mo. 522.) A. G. Gowan was trustee of an express trust. This possession never became hostile. (3 Johns. Cas. 124; 12 Johns. 367.) Defendant cannot tack her possession to that of her husband for the purpose of bringing herself under the statute. (10 Cush. 241.) The evidence is against the defence of a gift, and is not sufficient to warrant the giving of the fourth instruction.

Gardenhire, for respondent.

I. Every conveyance of goods and chattels, in trust to the use of the person so making such conveyance is void against creditors. (2 R. C. p. 802, § 1.) Every conveyance or assignment in writing or otherwise of any interest in goods and chattels made with the intent to hinder, delay or defraud creditors, as to such creditors is utterly void. Every transfer of property, it matters not in what form, contrived to defraud creditors is void, and when void the party in possession may hold it against his fraudulent grantor, donor or bailor. It is the contrivance to hinder or delay creditors that makes the transfer fraudulent, and its being fraudulent enables the party in possession to hold it. Every pretended transfer of an absolute title cancels an actual bailment; running the property off into an adjoining state and hiding it, may do the same thing. The jury, in this case, have found that it did do it. There is a transfer of possession in both cases, a concealment of an actual bailment in both, and with the intent to defraud creditors. As the party in possession in one case can unquestionably hold it, why not in the other? The instructions fairly presented the case to the jury, and the judgment of the court below ought not to be disturbed. The tendency of the evidence fully supported the instructions given, and the jury having found the facts for respondent, their verdict ought not to be disturbed.

NAPTON, Judge, delivered the opinion of the court.

The first instruction given for the defendant in this case is not, in our view, correct. It asserts the principle that if a debtor puts personal property into the possession of another with a view to protect it from his creditor, the party in possession may avail himself of the fraudulent intent to defeat the action of the debtor for the recovery of his property. This is going farther that any adjudged case which has fallen under our observation, and we doubt the morality or expediency of the doctrine.

The statute against fraudulent conveyances declares every deed of gift and conveyance of goods and chattels, in trust for the use of the person so making such deed of gift or conveyance, to be void as against creditors; and every conveyance or assignment in writing or otherwise of any estate or interest in lands or in goods and chattels, made to hinder and delay creditors, is declared void as against creditors and purchasers.

The statute has no application to a mere bailment, a simple delivery of possession, for the plain reason that such an enactment would be useless. The statute is intended to remove obstructions out of the way of creditors, and all transfers of title or interest from the debtor to a third person are abstractions, apparent or real, according to their good faith or want of good faith. If they are not made in good faith, but merely for obstructions to creditors, the statute sweeps them away and pronounces them of no effect, so far as creditors are concerned; but so far as the parties themselves are concerned, their relations to each other are not changed. The title is allowed, so far as the parties to it are concerned, to remain just where they have placed it, and the courts will not interfere to change the...