Johnson v. Mason
| Decision Date | 10 February 1914 |
| Citation | 163 S.W. 260,178 Mo.App. 109 |
| Parties | OTTO A. JOHNSON and R. W. WILLIAMS, Respondent, v. PETER T. MASON, Defendant; FRANK MASON, Interpleader, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Texas County Circuit Court--Hon. Wilson A. Taylor Special Judge.
AFFIRMED.
Judgment affirmed.
J. W Mayfield & Son and John N. Sanks for appellant.
(1) If there are no creditors there can be no fraudulent conveyance to defeat the rights of creditors. Respondent's evidence most emphatically shows that they were only sureties, and a surety is not a creditor until he pays the debt or discharges the liability or is damnified. Hearne et al. v. Keath et al., 63 Mo. 84; Bauer v. Gray, 18 Mo.App. 170; McCormick v. Obanion, 168 Mo.App. 607; Huse v Ames, 104 Mo. 91. (2) None but a creditor can attack a conveyance as being made to defraud creditors. Sec. 2881, R. S. 1909; McLaughlin v. McLaughlin, 16 Mo. 242; Lewis v. American Life Insurance Company, 7 Mo.App. 114; Skinner v. Oaker, 104 Mo.App. 45; Reynolds v. Faust, 179 Mo. 21; Stedman v. Hayes, 80 Mo. 319; Hayes v. Fry, 110 Mo.App. 20. (3) No fraud is shown on the part of the interpleader. Fraud is never presumed. Robison v. Dryden, 118 Mo. 534; Stahlhuth v. Nagle, 229 Mo. 570; Lumber Company v. Crommer, 202 Mo. 504; Bank v. Worthington, 145 Mo. 92. (4) The court erred in permitting witnesses to testify as to statements made to them by Peter T. Mason, when interpleader was not present. Torreyson v. Turnbaugh, 105 Mo.App. 439. (5) The court erred in giving instructions number five and seven in behalf of respondents. Phillips v. Rule, 124 Mo.App. 525; Shannon v. Oneil, 60 Mo.App. 531.
Lamar, Lamar & Lamar for respondents.
(1) Where the validity of the attachment and levy are not in issue under the pleadings, the plaintiff in the attachment need not introduce evidence of his being a creditor of the defendant. Graham Paper Co. v. Crowther, 92 Mo.App. 273. (2) An interplea in attachment is in effect a separate, independent suit in which the interpleader is the plaintiff and the plaintiff in the original attachment suit occupies the position of defendant. The sole issue in such case is the ownership and right to the possession of the property attached, and the burden is on the interpleader to show his title, and he must recover, as in replevin, upon the strength of his own title and not on the weakness of his adversary's. Car Co. v. Barnard, 139 Mo. 142; Bank v. Boyer, 161 Mo.App. 143; State ex rel. Reeves v. Baker, 26 Mo.App. 487; Rice-Stix v. Sally, 176 Mo. 107; Gitt v. McCammon, 74 Mo.App. 209; Kirchenslager v. Bank, 58 Mo.App. 165. (3) One of the issues in the case was the intent and purpose of Peter T. Mason, the defendant in the attachment. His fraud was the initial step in the development of plaintiffs' defense to the interplea, and his statements were admissible for that purpose. Holmes v. Braidwood, 82 Mo. 614; Holmes Organ Co. v. Petit Co., 34 Mo.App. 547; Clark v. Cox, 118 Mo. 656; Deslunger v. Harrington, 28 Mo.App. 636. (4) Knowledge of facts from which a prudent man would have known of the intent of the vendor has been held many times in this state to charge the vendee with knowledge of such intent. Sellers v. Bailey, 29 Mo.App. 180; Roan v. Winn, 93 Mo. 511; State ex rel. v. Estel, 6 Mo.App. 9; Bank v. Tobacco Co., 155 Mo. 609; Rupe v. Alkire, 77 Mo. 641. (5) It is not necessary that a purchaser participate in or assist in the fraud of the vendor. If he has knowledge of such fraudulent intent of the vendor, it vitiates his title. Grocery Co. v. Henson, 147 Mo.App. 31; Kurtz v. Troll, 175 Mo. 506; Bank v. Frye, 216 Mo. 34.
Plaintiffs sued the defendant, Peter T. Mason, in the circuit court of Texas county and thereafter, on March 29, 1913, obtained a writ of attachment and caused the same to be levied upon seventeen cows and two horses as the property of the defendant, then upon the farm previously occupied by the defendant but upon which the interpleader, Frank Mason, his son, was then residing. On June 16, 1913, the son filed his affidavit and claim to all of the cattle upon which this controversy is based. The trial in the circuit court resulted in a verdict and judgment in behalf of the plaintiffs and the interpleader has appealed.
The defendant, who, it is conceded, was heavily involved, on February 25, 1913, had a public sale of a portion of his property and soon thereafter left the state. It was developed by the testimony, however, that before he went he was guilty of such conduct as would justify the conclusion that he intended to defraud his creditors and that the interpleader so understood.
The testimony offered in behalf of the plaintiffs tends to prove that the father owned the property in controversy at and prior to the date of the levy and that he so stated in the presence of his son, who made no objections thereto, and the interpleader's testimony tends to prove that he purchased and owned the cattle, either individually or in partnership with his father. Upon his claim of an interest by purchase from third parties, the jury, under proper instructions, found against him. He is here now insisting that certain errors were made on the question of instructions in behalf of the plaintiffs relative to the alleged fraud of the defendant. As the interpleader rested his claim on the question of ownership, by reason of alleged purchases from other parties than defendant, we think that he should be confined to that issue here. We cannot understand wherein he can be heard to complain of any issue of fraud, because he cannot contend for a time that he bought the property from others than defendant, and, when that is disbelieved, change and claim that he bought from the defendant. When he elected to make the defense that he had purchased from others than his father and that defense failed, as it did, we must then hold that he succeeded to the possession of the stock as a fraudulent purchaser, as donee or bailee of his father. If as a fraudulent purchaser, no one will question plaintiff's judgment; if as a donee, and it being conceded that the father was insolvent, then the interplea must fail, as a debtor should be just with his creditors before he is allowed to become generous with his relatives or friends (Welch v. Mann, 193 Mo. 304, 325, 92 S.W. 98, Star v. Penfield, 166 Mo.App. 302, 304, 148 S.W. 382); if as a bailee, he is in no position to complain.
The interpleader insists, however, that since the plaintiffs claim that interpleader is holding as a fraudulent vendee of the defendant he can be such fraudulent vendee of the defendant only in event the plaintiffs were creditors of the defendant; consequently, that it is encumbent upon the plaintiffs in the trial of this case to prove that as a matter of fact the defendant was indebted to the plaintiffs. This, in nearly every attachment case where there is an interplea, would necessitate the plaintiff proving his claim as against the interpleader as conclusively as if that issue were being tried against the defendant. It would mean that there must be two trials of that issue and that plaintiff might win in one and lose in the other. Section 2300, Revised Statutes of 1909, requires the plaintiff, before obtaining his writ of attachment, to execute a bond conditioned for the protection of the defendant and any interpleader; and Section 2345, Revised Statutes of 1909, permits an interplea to be filed in an attachment suit, which otherwise could not be done. So that the interpleader is placed in the attitude of taking advantage of a right conferred upon him by reason of the attachment laws, and if the plaintiff is required to prove his claim against the defendant, then the interpleader is permitted to attack the very foundation of the privilege granted him. It is not encumbent upon the interpleader to file this claim, but it is simply an additional remedy and one in which he must be regarded as having recognized the validity of the attachment in filing his claim. The appellant here almost, if not quite, concedes that to be a fact when he says in his statement: "The writ of attachment nor any of the steps necessary to secure the same or actions taken thereunder are not in question here."
[Car Co. v. Barnard, 139 Mo. 142, 145, 40 S.W. 762.] We conclude that neither reason nor authority exact of the plaintiff in an interplea that he prove his claim against the defendant, as that is not an issue in the proceeding. [Graham Paper Co. v. Crowther, 92 Mo.App. 273, 275; Beck v. Wisely, 63 Mo.App. 239, 243.]
The United States Circuit Court of Appeals of this circuit, in discussing an interplea in an attachment suit, uses this language: "It is a proceeding for the disposition of property or money in the custody of the court and not for the recovery of either from any person or party." [Swift & Co. v. Russell, 97 F. 443.]
In the case of Sloan v. Hudson, 119 Ala. 27, 24 So. 458, it was held that the execution of the attachment bond estops the interpleader from denying the levy; and in Schloss v Inman, 129 Ala. 424, 30 So. 667, and Foster v. Goodwin, 82 Ala. 384, 2 So. 895, that "The existence of plaintiff's debt, as well as the fact that the attachment was levied, the claimant, by assuming the position of claimant in the attachment suit, is...
To continue reading
Request your trial