Hathaway v. Brown

• Decision Date: 05 October 1875
• Citation: 22 Minn. 214
• Parties: RODERICK D. HATHAWAY <I>vs.</I> WILLIAM BROWN & another.
• Court: Minnesota Supreme Court

Page 214

22 Minn. 214

RODERICK D. HATHAWAYvs.

WILLIAM BROWN & another.

Supreme Court of Minnesota.

October 5, 1875.

Action for the wrongful taking and conversion of a stock of goods, sold by one Mills to the plaintiff, and taken from the latter's possession by the defendant, Brown, as sheriff, by virtue of executions against Mills in favor of the other defendants. Defence — that the sale to plaintiff was in fraud of the creditors of Mills. At the trial in the district court for Olmsted county, before Van Dyke, J., the plaintiff introduced evidence tending to prove that, in part payment for the goods in question, he had conveyed to Mills certain real estate, and that some of the defendants, with knowledge of this fact and of the circumstances attending the sale, had caused the land so conveyed to be levied on and sold under their executions against Mills. On this point the court instructed the jury as follows: "A fraudulent sale, that would be void as to creditors, is only void when they see fit to treat it as void; but if the creditors in such case agree to, and accept and adopt, such sale, and demand and receive the consideration, or a considerable part of it, which the debtor obtained for the property so sold, they thereby acquiesce in and affirm such sale, and are precluded from denying the validity thereof. They may either avoid it, or affirm it and take the benefits under it, but they cannot do both. If, then, you find from the evidence that these creditors, or any of them, with full knowledge of all the facts and circumstances of the sale, and of the alleged fraudulent character thereof, claimed and received and accepted the property which Mills received from Hathaway, as the consideration, in whole or in part, for the sale of the goods in question, then, as to all the creditors who thus acted, you must hold the sale to be good, although but for such action you might otherwise find such sale to be bad."

To this the defendants excepted. Other exceptions taken are stated in the opinion. The jury found for the plaintiff, a new trial was refused, and defendants appealed.

H. C. Butler and E. A. McMahon, for appellants.

C. H. Berry and Chas. M. Start, for respondent.

CORNELL, J.

It is claimed by defendants that the sale under which the plaintiff claims title to the goods in question was fraudulent and void, as having been made by Mills, who was at the time an insolvent, with the intent to hinder, delay and defraud his creditors, and that the vendee, Hathaway, at the time of his purchase, had knowledge of such insolvency, and notice of such fraudulent intent on the part of his vendor.

These were the real issues controverted on the trial, and which the jury had to determine. Evidence was introduced by the defence tending to establish their theory of the case, and, as a part thereof, one Billings and R. A. Jones testified to a certain conversation had between them and plaintiff, while seated together by a stove in the store of Mills, on a certain evening in the fall of 1868, of a confidential character, and in a low tone of voice, concerning the financial...