Howe v. Waysman

• Decision Date: 31 July 1848
• Citation: 12 Mo. 169
• Court: Missouri Supreme Court
• Parties: HOWE & WALLACE v. WAYSMAN ET AL.

12 Mo. 169

HOWE & WALLACE

v.WAYSMAN ET AL.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN, for Appellants.

1st. As against the appellants, John H. Howe and Robert Wallace, the bill of sale of the negro woman, Charlotte, in the year 1829, by Shackleford to the infants, Hetty Howe, Martha Ann and Andrew J. Howe, under the circumstances thereof, is fraudulent and void. See Mo. Dig. 1825, p. 401-2, §§ 2, 3, title Fraud; 1 Marsh. 209-10, Mason & Wife v. Baker; 1 Dana, 531; 4 McCord, 294; Hudnal v. Wilder, Ex'r, 1 Hill, 143-4; 5 Peters, 264, 278, 281, Cathcart et al. v. Robinson; 15 Mass. R. 310, Gates v. Gates; 2 Pick. 414; 1 Story's Eq. §§ 348, 353; 3 Wend. 411; Roberts on Fraudulent Conveyances, 422, (note) 420-1; 1 Mad. Ch. 271-2-3-4; 4 Eng. Ch. Cond. R. 264-5, Richardson v. Small; 14 Mass. R. 137, Bicker v. Ham and others; 2 Cowper's R. 432, Cadogan v. Kennett; 10 Johns. 457, 461; 18 Johns. 403. 2 nd. The Circuit Court erred in permitting the plaintiffs to read to the jury upon the proof offered by plaintiffs, the copy of the bill of sale, purporting to be made by Edmund Shackelford, to the said Hetty, Martha Ann and Andrew J. Howe, in lieu of the original bill of sale. 3rd. The court erred in permitting plaintiffs to read to the jury the parts of said deposition of said James Howe, which was read by them, and in refusing the defendants the liberty, afterwards, to read to the jury the said several and every of the parts thereof, which they proposed to read to the jury. 4th. That the court erred in rejecting the proofs offered by defendants conducing to show their title to the negroes derived under the purchase and bill of sale thereof, in April, 1841, from said James Howe for a fair, full and valuable consideration, as also the evidence offered by them conducing to show the insolvency of said James Howe at the time of purchasing Charlotte from Shackelford, and that the same was made with an intent to cheat and to defraud not only his creditor, but also subsequent purchasers thereof, and in trust for his own use and benefit. 5th. The finding of the jury was and is against law and evidence.

LEONARD & ADAMS, for Appellees.

1st. The statute against Fraudulent Alienations, avoids conveyances and not purchases. It is a new pretense to say that a purchase made to conceal property from creditors, is a conveyance within the meaning of the statute. A purchaser can only attack as fraudulent the conveyances of those under whom he claims, and not conveyances of third persons from whom he derives no title. Here the defendants claim as purchasers from James Howe, who was no party to the conveyance under which the plaintiffs derive their title, and which it was supposed to impeach as fraudulent by the rejected evidence. Revised Laws of Missouri of 1825; Allison v. Bowles, 8 Mo. R. 346; Kenningham v. McLaughlen, 3 Mon. 31; Halbert v. Grant, 4 Mon. 590; Forsyth v. Kreakhaum, 7 Mon. 79; Crozier v. Young, 3 Mon. 148; Crozier v. Bryant, 4 Bibb, 174; Orr v. Pickett, 3 J. J. Marsh. 280; 5 J. J. Marsh. 87; McCrary v. Purcil, 1 Marsh. 114; 3 Lit. 10; Roberts on Fraud. Conveyances, 463, 421.2nd. If this were otherwise and the creditor of James Howe were at liberty to follow their debtor's money into the property purchased with it, upon showing that the purchase was made to defraud them, that would furnish no ground for conferring the same rights upon a subsequent purchase from him. Admitting for the present that a creditor who has been wronged by a fraudulent purchase, may, at common law, follow his debtor's property through every change it is made to assume, this is no reason for conferring the same privileges upon a subsequent purchaser. 3rd. James Howe was the father of the plaintiffs, and as such, their natural guardian during their minority. His possession was their possession. Here the rule caveat emptor applied and if the defendants acquired no title, their remedy is by suit against him and not by annulling our title. Authorities above cited: Chism v. Wood, Hardin's R. 531.

SCOTT, J.

This was an action of trover brought by appellees on 5th February, 1846, against the appellants for three slaves, Charlotte and her two children, Woodson and George. Waysman and Roy, two of the appellees, are sons-in-law of James Howe, having intermarried with his daughters, Martha Ann and Hetty. The other appellee, A. J. Howe, is a son of the said James Howe. The appellees claimed the slaves in controversy under a bill of sale executed to them by Edmund Shackelford, in Kentucky, for the slave Charlotte, who, after the sale, bore the two children, Woodson and George. The bill of sale was dated 28th July, 1829. Howe, the father, testified that he was the only guardian of his two daughters up to the time of their marriage, they being minors when the slave Charlotte was conveyed to them; and that he was still the natural guardian of A. J. Howe, who is also a minor. He further testified two facts tending to prove the execution of the original sale bill by Shackelford, after which a copy of it was read in evidence. The slaves were with James Howe until he sold them to the appellants, who were, it was admitted, in possession of them. The defendant then offered in evidence a bill of sale of the slaves Charlotte and Woodson, executed by James Howe, the father of the appellees, to the appellant, John H. Howe, on the 2nd April, 1831, for the sum of $400, which was excluded by the court. The appellants then to show title to Charlotte in James Howe, the father, offered to prove that in July, 1829, and before that time the said Howe was greatly indebted and insolvent in the State of Kentucky; that with his own money and with no part of the money or property of the appellees he purchased the slave Charlotte from Edmund Shackelford, and procured the said Shackelford to make the bill of sale to the appellees, with the design and for the avowed purpose of shielding the said slave, Charlotte, from his (Howe's) creditors; that he took possession of said bill of sale, and of the said slave Charlotte, and brought her from Kentucky to this State, where he sold her and her child, Woodson, to the appellant John H. Howe, for the price of $400, which was their full and fair value at the time, and without notice of the conveyance by Shackelford, to his children. This evidence was likewise excluded. There was a verdict for the appellees for the value of the slaves and their hire. The appellants having saved exceptions to the opinion of the court, after an unsuccessful motion for a new trial, brought the case to this court.

This court is impressed with the importance of protecting the rights of infants, who, besides their natural infirmities, labor under legal disability imposed on account of their want of discretion. No system of jurisprudence which did not make such a class of citizens an object of its peculiar care, could commend itself to our reverence or affection. Bona fide gifts and conveyances to minor children living with their parents, they being their natural guardians, are not affected with fraud, merely from their want of possession. The possession of the father is regarded in law as the possession of his infant child. But as a gift or conveyance may be fraudulent when possession is actually delivered to the donee or alienee, so an imputation of fraud may be made where there is a gift or conveyance by a father to his infant children living under his protection and control. A father may make a valid gift to his children, but its validity is always liable to be questioned. The claims of affection must be postponed to those of justice. Such transactions are narrowly watched, for the inducements to them by those in adverse circumstances are so great that the claims of justice would be in constant danger of a sacrifice if they were permitted to pass without a rigid scrutiny. Had the conveyance in ...