Hook v. Craghead

• Decision Date: 31 January 1865
• Citation: 35 Mo. 380
• Parties: ZADOK HOOK, ADM'R OF THOMAS G. ADAIR, INTERPLEADER, Defendant in Error, v. STEPHEN CRAGHEAD, Plaintiff in Error.
• Court: Missouri Supreme Court

35 Mo. 380

ZADOK HOOK, ADM'R OF THOMAS G. ADAIR, INTERPLEADER, Defendant in Error,

v.STEPHEN CRAGHEAD, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1865.

Error to Callaway Circuit Court.

The following instructions were given by the court of its own motion:

1. If both or either of said mortgages were made in good faith for the purpose of securing the debts therein mentioned, and with no purpose at the time they were executed to hinder, delay or defraud the other creditors of Franklin, the jury must find the issue for plaintiff, unless they further find from the evidence, that Adair permitted Franklin to remain in possession of said goods and dispose of same for his own use.

2. If the jury find that Adair has paid to Wise the amount of the note secured by the mortgage, he being security on said note for Franklin, by the payment thereof he is substituted to all the rights which Wise had to the property, and has a right to hold the same as Wise would have had.

3. If Wise transferred his interest in the mortgage by assignment on the back of the mortgage, the assignment is conclusive evidence of his acceptance of it.

To the giving of the instructions asked by the plaintiff, the defendant objected and excepted.

On motion of defendant, the court gave the following instructions:

1. If the jury believe from the evidence in this cause, that John B. Franklin retained the possession of the goods, wares and merchandise in controversy, after the execution and delivery of the mortgages, and sold and disposed of the same or any part of them for his own use and benefit, with the knowledge or consent of Adair, they will find said mortgages fraudulent as to the creditors of said Franklin.

2. If the mortgages introduced as evidence in this cause, were made by Franklin with the intent to hinder, delay or defraud his creditors, or either of them, and that Adair was privy thereto, they will find a verdict for Craghead, although they may believe from the evidence that the debts said mortgages were made to secure, were bona fide, honest, correct and just.

3. Fraud may be proved as well by circumstantial, as by direct and positive testimony.

4. If the jury find from the evidence that J. B. Franklin, at the time of the execution of deeds of mortgage, was indebted, and they further find that the goods, wares and merchandise conveyed by said mortgages were left in the possession and under the control of J. B. Franklin, grantor, and that said Franklin continued to sell said goods, &c., conveyed _____, and the fact of selling was known to Adair, the deeds of mortgage are void as to the creditors in law, and they will find for Craghead.

Boulware and Belch, for plaintiff in error.

In this case the verdict is against all the evidence, and the court should have granted a new trial. (2 Gil. 285.) The 3d instruction given for plaintiff is clearly erroneous, and is in conflict with instructions given by the court, asked by defendant. It was held in the case of Benham v. Cary, 11 Wend. 83, that when the charge of the court has a tendency to make an erroneous impression upon the jury, &c., a new trial will be granted; and in 18 Maine, 436, it was held that when instructions give leave to the jury to draw an incorrect inference from facts material to the issue, the verdict will be set aside.

Adair waived any advantage he may have had, by having possession of the goods attached. He should have given bond and retained the goods, or sued in trespass.

Hayden & Hockaday, for defendant in error.

To sustain the judgment of the court below, the defendant in error relies upon the following points and authorities:

I. The court committed no error in giving the instruction for plaintiff, marked 3 in this brief. The instruction simply presents the view, that it was a fair transaction, and that Adair had a right to release any part, or all of the mortgaged property.

II. The jury could not have found otherwise than for the plaintiff in the cause; for it will be seen by reference to the issue on the interplea, that the only question in regard to one of the mortgages (the Wise mortgage) was,...