Jones v. Talbot

• Citation: 4 Mo. 279
• Parties: JONES v. TALBOT.
• Decision Date: 30 April 1836
• Court: United States State Supreme Court of Missouri

4 Mo. 279

JONES

v.TALBOT.

Supreme Court of Missouri.

April Term, 1836.

APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY.

This case arises out of the insolvent debtors' act. (Rev. Code, p. 445.) On the 15th of May, 1832, the plaintiff sued out process against the defendant, who on the 22nd of the same month, made out and delivered the schedule and took the oath required by the act, and was finally discharged at the September term of the Circuit Court, 1832. Afterwards, at the September term, 1833, the plaintiff filed allegations against the defendant, charging that he had obtained his discharge under the insolvent debtors' act, through fraud, &c., and that upon the appearance of the defendant, the plaintiff made his election under the act to have issues made up to be tried, upon the making up of which issues, the defendant moved for a continuance to the next term as of course, under the provisions of the 28th section of the act to regulate proceedings at law (Rev. Code, p 628) which motion was overruled. Then upon affidavit and cause shown, the case was continued at the costs of the defendant. To the decision of the court in refusing the continuance of course, and in taxing the defendant with the costs of the continuance upon cause shown, the defendant excepted. Afterwards, upon trial at the ______ term, 1834, the issues as made up between the parties, were found for the plaintiff. The defendant thereupon made a motion for a new trial, which was overruled, and excepted to and judgment given for the plaintiff; to reverse which, he has appealed to this court, and now assigns for error the refusal of the Circuit Court to grant a continuance at the first term, and its refusal afterwards to grant a new trial.

The facts of the case as they are presented in the bills of exceptions, are in substance: that the defendant, Talbot, was indebted to several of his brothers, near connections and friends, as well as to the plaintiff and others; and being so indebted, on the 3rd of April, 1832, executed to one of his brothers, as trustee, a deed of conveyance, in trust of all his real and personal property, estimated to be worth about $5000, to secure to particular creditors, his friends and connections, the payment of their debts, amounting to about. $2,800. That the debt due from Talbot to Jones, was contracted in July or August, 1830, and was for money loaned by Jones to Talbot, at an interest of ten per cent. per annum, and for which Talbot had, some two or three months before, renewed his note to Jones, with divers debts due to other creditors, was not provided for in the deed of trust. That some of the debts provided for in the deed, were security debts, and for moneys loaned without interest, and for services rendered the defendant. That the debt due to the plaintiff and some of the others omitted in the deed, were for money loaned at the rate of ten per centum per annum. That the defendant, after the conveyance in trust, was employed by the trustee to superintend the farm and hands conveyed by the deed, and to sell the crop, &c. and was allowed out of the proceeds $300 per annum for the first year, and was permitted, in attending to the business of the farm, and in traveling about, occasionally to ride one of the mules included in the deed.

The issues made up to be tried upon the allegations of the plaintiff, were: 1st. Did the defendant sell and convey his property in trust for certain of his creditors, for the purpose of defrauding the plaintiff, or any other creditor? 2nd. Did the defendant make the conveyance in trust to his brother with the expectation of some unlawful profit or advantage thereby? 3rd. Did the defendant make the conveyance upon an improper consideration, and with intent to defraud his creditors or any of them? 4th. Did the defendant deliver all of the property in said deed mentioned, to his brother in trust on an improper consideration and with an intention of taking the benefit of the insolvent debtors' act? 5th. Did the defendant convey his property in trust to his brother on an improper consideration. and with intent to give an undue preference to his creditors in said deed mentioned?

Upon these issues and upon this state of facts, the plaintiff asked for the following instructions, which were given: 1st. That the defendant conveyed any of his property to any of his creditors with the intent to take the insolvent oath, then the jury must find for Jones. 2nd. That if the jury believe from the evidence, that the deed was made with the intent to take the insolvent bath, then they must find for Jones. 3rd. That if the jury believe from the evidence, that the property conveyed was worth about $5000, and was conveyed to secure the debts pretended to be due in said deed of trust, the same is a circumstance from which they may infer fraud: to the giving of which the defendant excepted.

The defendant then asked for and obtained the following instructions: 1st. That if they believe from the evidence submitted to them in this case, that said defendant conveyed the property in said trust deed mentioned, to his brother in good faith for the purpose therein stated, and without fraud either in law or in fact, the said transfer is not prohibited by the statute of frauds, although it has the effect to hinder and delay the plaintiff from the collection of his debt. 2nd. That if they believe from the evidence, that the transfer of the property in said deed mentioned, was to some bona fide creditors of said defendant, and not to defraud his other creditors, such preference is not prohibited by the insolvent debtors' act, of this State, nor is such preference an undue preference in law.

HUNT and CHAMBERS, for Appellants. This cause arises out of the insolvent debtors' act: Talbot to secure the payment to certain of his creditors their just debts, conveyed to his brother William his real and personal property, by deed of trust, dated April 3rd, 1832, which was acknowledged and recorded the same day.

Jones and Hickman were not included in this deed, and although new notes had been given them a short time previous, they commenced suit against Talbot, and was about to arrest him, when on the 22d of May, he applied and took the insolvent debtors' oath, and surrendered all of his property in, and was finally discharged at the September term, 1832, from arrest.

Jones thereupon filed allegations against him, for the September term, 1833, at which term, at the election of Jones, issues were made up under the direction of the court, pursuant to the statute, which are in substance as follows, to wit: 1st. That Talbot conveyed the property in the deed of trust to his brother, for the purpose of defrauding said Jones and Hickman. 2nd. That he made said deed with an expectation of an unlawful profit and advantage to himself. 3d. That he made it on an improper consideration and with intent to defraud his creditors. 4th. That he had delivered all of his property in said deed on an improper consideration and with intent of taking the benefit of the act. 5th. That he had conveyed said property to his brother on an improper consideration, and with intent to give the creditors in said deed mentioned, an undue preference. These issues being joined, the defendant claimed as his right to have a continuance till the next term, without showing cause or paying the costs of the continuance. The court refused to grant this right, and the defendant excepted to the opinion and filed his bill of exceptions and then show cause and the case was continued at his costs. At the last May term of the court the cause was tried by a jury, who found all the issues for the plaintiff. The evidence is saved in a bill of exceptions, and a new trial prayed for, and refused, and the decision of the court excepted to. To reverse the opinion of the court in giving the above costs against the defendant, and in refusing to give him a new trial in said cause, the case comes here on an appeal.

And the points relied on by the appellant, are: 1st. That it was at the election of the plaintiff at the return term of the summons to propound interrogatories to the defendant, or to have issues made up to be tried by a jury and until the plaintiff had made his election, and the issues were made up, the defendant could not have come prepared for trial. See M. S. p. 450, § 17, page 628. § 25.

2nd. Talbot had a right to prefer one creditor or set of creditors to another. To pay such their just debts, when he could not pay all, is a good consideration to support the deed as to them, and the duty imposed on the trustee is sufficient to support it as to him. The intent was to secure the payment of the debts due these preferred creditors, and not to defraud, delay or hinder the others of their claims. The conveyance was in good faith, and not for an unlawful benefit or advantage to Talbot, nor with a view to take the benefit of the act. In short, the evidence does not support either of the allegations. See bill of exceptions. See 5 T. R. 420; 8 T. R. 521; 3 M. and S. 371; 3 Price 6; 2 Williams 427; 15 Johns. R. 582; 6 U. S. Con. R. 223, Haley v. Fairbanks, by Story, Circuit Court U.S., Oct. term, 1826; Olein Conezer, ap. (1) and the authority there cited; 3 Cohan, 73; 4 Wheat. 503.

3rd. The first and second instructions of the court, are not confined to the issues in evidence, and the third is so indefinite and uncertain, that it was calculated to mislead the jury, and neither as framed ought to have been given by the court, as will appear by the depositions above referred to.

WASH, J.^a1

The questions now raised for the consideration of this court, are: Did the Circuit Court err in refusing the continuance of course, and in adjudging the costs of the continuance upon cause shown against the defendant? Did the court err in giving the instructions asked for by the plaintiff? Was the verdict of the jury against law and evidence? And did the Circuit Court err in overruling the motion for...