Knox v. Hunt

• Decision Date: 31 March 1853
• Citation: 18 Mo. 174
• Parties: KNOX, Plaintiff in Error, v. HUNT & LABEAUME, Defendants in Error.
• Court: Missouri Supreme Court

18 Mo. 174

KNOX, Plaintiff in Error,

v.HUNT & LABEAUME, Defendants in Error.

Supreme Court of Missouri.

March Term, 1853.

1. The supreme court will not reverse a civil case because illegal evidence has been permitted to go to the jury, if it is afterwards withdrawn from their consideration by instruction.

2. If A. fraudulently transfers property to B., a purchaser from B., even for a valuable consideration, with notice of the fraud between A. and B. will take not title, as against A.'s creditors; but a third party who receives the property from B. in payment of a just debt, without notice of the fraud between A. and. B. will hold it against the creditors of A.

Error to St. Louis Circuit Court.

This was an action of trespass commenced by Richard F. Knox, in October, 1848, against Hunt & Labeaume, to recover the value of certain property which had been seized and sold by Labeaume, as sheriff, under an execution in favor of Hunt against E. K. Dodge, together with damages for the taking of same. The plaintiff claimed the property by purchase from James T. Key. On the trial, evidence was offered tending to prove that James T. Key formed a co-partnership with Parker Dodge, in December, 1847, to carry on the coal business, at the coal banks leased by E. K. Dodge of R. W. Hunt, and that they carried on the business under the name and style of Dodge & Key, until the spring of 1848, when said Key purchased Dodge's interest in the leasehold estate and personal property; that said Key continued to carry on said business until October, 1848, when he was turned out of possession of said leasehold property under a landlord's warrant at the suit of R. W. Hunt; that early in October, 1848, James T. Key sold and delivered to plaintiff the property described in plaintiff's declaration, to pay said plaintiff the amount Key owed him for money advanced; and that, for the balance, amounting to upwards of three hundred dollars, said plaintiff executed his note to Key; that said property was delivered to said plaintiff in the presence of Henry K. Holland, since deceased, and Ranar Knox, who took possession of said property and retained the same as agent for the plaintiff until the 14th day of October, 1848, when the same was levied on under execution in favor of Robert W. Hunt, against E. K. Dodge, and subsequently sold. There was evidence offered by the defendants tending to show that E. K. Dodge, to whom the lease was made, was alone interested in the coal business, and that, if Key had any interest, the firm was composed of E. K. Dodge and Key, and not of Parker Dodge & Key. The transfer from Dodge to Key was made by E. K. Dodge, as agent of Parker Dodge, in the spring of 1848, though no bill of sale was executed until the July following. Much conflicting evidence was introduced, bearing upon the question of fraud between Dodge and Key, and upon the ownership of the property at the time of the sale to plaintiff. During the trial, the defendants offered in evidence a transcript of the proceedings in a trial of the right of property before a sheriff's jury. The plaintiff objected, on the ground that the trial was ex parte, without notice, and a trial which the plaintiff notified the sheriff he would not attend. The court admitted the transcript, and the plaintiff excepted. At the close of the case, the court instructed the jury to disregard the proceedings before the sheriff's jury. Many instructions were given and refused. The following, among others, were given at the instance of the plaintiff:

1. If Key was a partner in the firm of Dodge & Key, Key is to be taken, in a suit such as this, as the owner of one-half of the partnership property, in the absence of proof that he is the owner of a less share.

6. If the jury shall find that E. K. Dodge and Key were guilty of fraud in their dealings, still, if the property in dispute was, in fact, transferred to Key and afterwards from Key to the plaintiff, to pay a just debt due to the plaintiff, and without notice to the plaintiff, of any fraud between Dodge and Key, then such transfer to the plaintiff would be effectual to pass the property to the plaintiff, as against the creditors of Dodge.

The following, among others, were given at the instance of the defendants:

2. If the jury find from the evidence, that there never was any bona fide sale to Parker Dodge of the property in dispute, and Key was cognizant of that fact, then no transfer by said Parker Dodge to the said Key would vest any title in said Key, as against the creditors of said E. K. Dodge.

3. If the jury find from the evidence, that there was fraud in the alleged transfer or transfers of the property in dispute, first by E. K. Dodge, to Parker Dodge, and next by said Parker to said Key, and that the intention on the part of E. K. Dodge and Parker Dodge and said Key, in passing the said property into the hands of Key, was to hinder and delay the defendant, Hunt, in the collection of any debt against said E. K. Dodge, and that said plaintiff was cognizant of such fraudulent intention, no conveyance by said Key to said plaintiff vested any title in him against the creditors of the said E. K. Dodge.

There was a verdict and judgment for the defendants.

Plaintiff filed his motion for a new trial, one of the reasons assigned for which was, misbehavior on the part of the jury, as set forth in affidavits filed. Counter affidavits were also filed on the part of the defendants. The motion for a new trial was overruled, and the case is brought to this court by writ of error.

Knox & Kellogg, for plaintiff in error.

I. The testimony of every witness examined in the case proves that James T. Key was a partner in the firm of Dodge & Key, from its for mation in 1847, until its dissolution, so that plaintiff's right to one-half of the property is undoubted.

II. All the legal and competent evidence in the case establishes that Parker Dodge and not E. K. Dodge was the other partner.

III. The court erred in admitting the proceedings before the sheriff, and the subsequent instruction to the jury to disregard them, does not cure the error. (State v. Mix, 15 Mo. 153.)

IV. The second instruction given for the defendant does not contain a correct abstract legal principle, and if it did, there was no evidence to sustain it. It is not true, if A. is the owner of property of which he makes a merely nominal and not a bona fide transfer to B., that A. and B. cannot, for a valuable and adequate consideration, make a valid sale of said property to C., provided C. knew that the sale from A. to B. was not bona fide. To prevent the title vesting in C., under such circumstances, he must have been aiding and assisting A. and B. in their bad faith. If he purchase...