Holmes v. Braidwood

Decision Date31 October 1884
Citation82 Mo. 610
PartiesHOLMES et al. v. BRAIDWOOD; HUISKAMP et al., Interpleaders, Appellants.
CourtMissouri Supreme Court

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.


Hagerman, McCrary & Hagerman for appellants.

The court erred in saying to the jury that if the Huiskamps had knowledge of Braidwood's intent to defraud the conveyance was fraudulent. It was admitted that interpleaders were in good faith creditors. In such case a mere knowledge of a fraudulent intent on the part of the grantor does not avoid the conveyance. The grantee must participate in the fraud. This is the modern and now well settled rule. Shelley v. Boothe, 73 Mo. 74; Kohn v. Clement, 58 Ia. 589; Anderson v. Warner, 5 Ill. App. 416; Butler v. White, 25 Minn. 432; Olmstead v. Mattison, 45 Mich. 617. Knowledge of the vendee only avoids the transfer where there is a new purchase, and it cuts no figure where the transfer is to secure or pay debt. The suit was begun by George P. Holmes & Co.; the verdict was for George Holmes, and the judgment was for George P. Holmes & Co. This was unwarranted, as no substitution was made, and the question was directly raised by the motions for new trial and in arrest. The evidence offered by respondent, consisting of conversations between respondent's counsel and defendant's counsel, was inadmissible. Declarations of a grantor are only admissible on two grounds: That they are part of the res gestae, (Bump on Fraud. Con., (2 Ed.) 563,) or that it is explanation of the possession. Ib., 569; Burrill on Assign., (4 Ed.) 613. These authorities show that the declaration must be made before the sale.

George Hall for respondents.

The instructions declared the law correctly. Noble v. Blount, 77 Mo. 235; Blewett v. Railroad Co., 72 Mo. 583; Stale v. Hopper, 71 Mo. 425. Appellants cannot complain of an error in respondents' instruction which they helped to produce, and which is also contained in their own instructions. Noble v. Blount, supra; Davis v. Brown, 67 Mo. 313; Leabo v. Goode, 67 Mo. 126; Ames v. Gilmore, 59 Mo. 80. A conveyance which is void in part as being given to hinder, delay or defraud creditors, is void in toto. Hyslop v. Clark, 14 Johns. 464; Werden v. Howes, 10 Conn. 50; Tickner v. Wiswell, 9 Ala. 305; Goodrich v. Downs, 6 Hill 438; Rosswell v. Winne, 37 N. Y. 591; Daugherty v. Cooper, 77 Mo. 528. The alleged error as to the verdict is without merit. Neil v. Dillon, 3 Mo. 59. The court did not err in admitting the evidence offered by plaintiffs as to the conversation between the defendant Braidwood and plaintiffs' attorney. Exchange B'k v. Russell, 50 Mo. 531; Burgert v. Borchert, 59 Mo. 80.


This action was instituted in a justice's court. Plaintiffs brought action by attachment under which certain goods were seized as the property of defendant, Braidwood. Huiskamp & Bro., partners, interpleaded, claiming to be the owners of the goods. On trial had in the justice's court, the issues were found for the plaintiffs. Interpleaders appealed to the circuit court, where on trial de novo, the plaintiffs again obtained a verdict and judgment, from which interpleaders prosecute this appeal.

The evidence on the part of interpleaders tended to show, in fact it was admitted by plaintiffs, that at and before the date of the attachment Braidwood was largely indebted to interpleaders. The evidence of interpleaders further showed that said debtor, prior to the attachment, turned over said goods to them under a written bill of sale in payment of said indebtedness and for the benefit of one Mrs. Lambert, and that interpleaders had taken possession of the goods.

The evidence on the part of plaintiffs, so recites the bill of exceptions, “tended to show that the bill of sale was executed and the goods in controversy turned over by Braidwood to interpleaders with intent to hinder, delay and defraud his creditors, and that Huiskamp & Bro., interpleaders, had knowledge of such intent. Plaintiffs, also, introduced evidence tending to show that at the time their note, upon which suit was brought and writ of attachment issued against said defendant, Braidwood, was presented to defendant, Braidwood, for payment, which was before the sale of the goods to interpleaders; defendant, Braidwood, promised and agreed with Judge Hall, who represented said notes for plaintiffs, that he would advise with interpleaders, as they held the largest claim against him, and before he did anything further with his goods, let him know what interpleaders said concerning the payment thereof; that he, Braidwood, also, said that he did write a letter to interpleaders about the payment thereof, but that interpleaders made no reply thereto; that defendant did not advise plaintiffs that he had not heard from interpleaders before selling and transferring the goods to them. To this evidence interpleaders objected without avail.

I. The first error in the order of trial assigned by appellants is as to the competency of the statements made by Braidwood to plaintiffs. It is conceded by interpleaders that a part of this conversation was anterior to the sale of the goods by Braidwood to them, but they claim that a portion of it was subsequent thereto. That any portion of this conversation was subsequent to the sale, counsel for interpleaders admit is only inferable from the latter clause of this evidence, to-wit: “That defendant did not advise plaintiffs that he had not heard from interpleaders before selling and transferring the goods to them.” This language is equivocal. It asserts merely a negative proposition that might well consist with the antecedent statement that interpleaders had made no reply to his letter before the sale. At all events, we hold that when a party thus complains of error in the ruling of the trial court his bill of exceptions should not only show the specific objection made, but the fact in evidence relied on as its basis should be so palpably brought out and preserved, as to make it obvious without strained and doubtful inference as to what the point and facts were before the court. Otherwise the trial court may pass on one matter or point and this court reverse for error on another. Roussin v. Ins. Co., 15 Mo. 244; Skinner v. Ellington, 15 Mo. 488. An examination of the specific objections urged at the trial against the admissibility of this evidence, satisfies my mind of the correctness of the foregoing observation. The objections were:

1st, That it being a contract or conversation between defendant and plaintiffs' attorney, and not in the presence of interpleaders, they could not be bound or their interest affected by it. 2nd, That the defendant could not bind interpleaders by act or disclosures, not made in their presence or to their knowledge. 3rd, A part of said conversation being as to the contents of some writing, the writing itself was the best evidence, and until it was shown to be lost or some notice given to interpleaders to produce it, parol evidence could not be introduced as to the contents thereof.

No imputation was made upon any part of the statement as occurring subsequent to the sale, and no discrimination is made between such as occurred prior and subsequent. But the objection went to the whole statement on the broad and single ground that the interpleaders were not present nor consenting thereto. The evidence, we think, was admissible. It was certainly competent as against Braidwood, the common debtor. One of the issues, and an essential one involved in the inquiry, was the conduct, the motive, of Braidwood. Was the transfer made by him with a fraudulent intent towards his other creditors? His fraud was the initial step in the development of the plaintiffs' defense to the interplea. If the debtor was guilty of no fraud, the plaintiffs' cause was ended, regardless of the motive and conduct of the purchaser. True it is, the plaintiffs should follow up the proof of the debtor's fraud with evidence of the interpleaders' fraud in making the purchase of the goods; but the evidence to establish the two propositions may be different in kind and independent in source. “Evidence in regard to the conduct and fraud of the debtor, prior to the transfer, is admissible to prove the fraud on his part, and if this is proved the knowledg of it on the part of the grantee may be proved by any circumstances tending to show a participation in the designs of the debtor. The acts and declarations may be proved without proving knowledge on the part of the grantee, of the particular acts and declarations from which the fraudulent intent is to be inferred. The competency of such evidence does not depend upon the time when the act was done or the declaration made. If the act or declaration is so connected with the main fact under consideration as to explain its character, further its object or to form in conjunction with it one continuous transaction, the evidence is admissible without regard to the time when the act was done or the declaration was made.” Bump's Fraud. Con., (3 Ed.) 582, 583. As against the fraudulent grantor, his...

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