Lane v. Kingsberry

Decision Date31 March 1848
Citation11 Mo. 402
PartiesLANE v. KINGSBERRY.
CourtMissouri Supreme Court
ERROR TO ST. LOUIS CIRCUIT COURT.

This is an action of replevin, brought by the defendant in error against the plaintiff in error, in the St. Louis Circuit Court, on the 22nd September, 1843, for two slaves, Mary and Julia. On the same day the writ was served and the slaves delivered to the plaintiff by the sheriff. The defendant pleaded, in the first instance, the general issue, and afterwards, by leave of court, another plea, setting up property in the slaves in himself. The plaintiff filed his replication, traversing this plea of property in defendant. The cause being at issue, it was brought on for trial on the 13th June, 1844, when the defendant withdrew his plea of the general issue and went to trial on the plea of property. At this trial a verdict was found for the defendant, and a formal judgment was immediately, but improperly and irregularly, entered up by the clerk upon the finding of the jury. Afterwards, and in due time, the counsel of plaintiff filed his motion to set aside this verdict and for a new trial. This motion was sustained by the court below.

On the 7th June, 1845, a second trial was had, and the jury being unable to agree upon a verdict, were discharged.

Afterwards, on the 3rd February, 1846, a third trial was had, and the jury found a verdict for the plaintiff. The defendant then filed his motion to set aside this verdict, but the Circuit Court overruled his motion, and the defendant excepted and brought his case by writ of error to this court.

On the last trial of the cause, the defendant, Lane, gave in evidence the record of a judgment in the St. Louis Court of Common Pleas in favor of defendant against A. G. Edwards, on a note of A. G. Edwards & Co., dated the 6th August, 1842, payable one day after date, for $1,827 12, bearing ten per cent. interest. Process was served on the 14th October, 1842, and judgment rendered on the 13th April, 1843. Also, a record from the same court of a judgment in favor of Lucien D. Cabanne, on the same note on which the preceding judgment was rendered against Edwards. This suit was commenced at the November term, 1842, by attachment against the defendant therein as being a non-resident, and the slaves in question were levied upon. After judgment had been obtained, the slaves were sold by the sheriff on execution, and bought in at the sale, by the plaintiff, Lane, for $300. At the time of the sale, the plaintiff, Kingsberry, gave public notice to all present and to said Lane that he claimed the slaves as his property. Upon the sale, they were delivered by the sheriff to the defendant, Lane, and were immediately afterwards replevied in this action by Kingsberry.

The defendant then proved by J. B. Sarpy that the slaves were brought from North Carolina by L. D. Cabanne, when he brought his wife out to Missouri, they having been given to her by her father as body servants and having been raised with her. Sarpy also testified that he was one of the executors of John P. Cabanne, deceased, and that on a settlement with A. G. Edwards and L. D. Cabanne, as distributees of said decedent's estate, they had each credited the estate with $10,000 or $12,000, and still there was more personal property to be distributed, and also a considerable landed estate, of which said L. D. Cabanne would be entitled to a portion. The defendant, Lane, then closed his casc. Thereupon, the plaintiff, after having duly proved its execution and delivery, gave in evidence a bill of sale or deed of the two slaves, dated the 10th May, 1841, and acknowledged on the 12th, and recorded on the 22nd, executed by Lucien D. Cabanne to the plaintiff, in trust for Cabanne's wife. The deed expressing on its face that it was made for the money consideration of $1 00 and other considerations, and that the slaves were the same that had been given the cestui que trust by her father on her intermarriage with said Lucien D. The plaintiff also proved by U. Raisin that, at the execution of the deed, he had been authorized by the plaintiff to hire out the slaves and collect the hire and pay it over to Mrs. Cabanne, the cestui que trust, which he did. The plaintiff here closed his case.

The defendant then offered in evidence the following deeds, which were objected to by plaintiff's counsel, and excluded by the court: 1st. A deed dated 27th April, 1839, from L. D. Cabanne to Lewis V. Bogy, in trust for Mrs. Cabanne, of two tracts of land, one containing 104.88 arpents, the other containing 200 arpents, and both lying in St. Louis county. The deed professes to be a settlement by the husband upon the wife in return for “money and other valuable property” that he had received from her. But there was no proof produced, or offered to be produced, to show what was the value of the land conveyed by the deed. 2nd. A deed of mortgage or of trust from A. G. Edwards to Julia G. Cabanne, widow of the late J. P. Cabanne, and James W. Kingsberry, to secure a note indorsed by said J. P. Cabanne, in his life-time, for Edwards, Raisin & Co., dated the 1st August, 1840, for $7,000, payable two years after date; and also a note of A. G. Edwards & Co. to said Kingsberry for $500, dated 1st August, 1842, payable one day after date. This deed was executed on the 1st August, 1842. 3rd. A deed of trust from James A. Cox to the trustees of L. D. Cabanne and A. G. Edwards, of one-eighth of the steamer Gulnare, with her tackle, apparel and furniture, to secure the payment of his note to them for $2,587 50, and is dated the 12th February, 1841. 4th. The very deed or bill of sale under which the plaintiff claimed title to the slaves. 5th. A deed by sheriff Brotherton to A. G. Edwards and Thomas J. Beirne, dated December 8, 1841, of a mill, rectifying distillery, engine house and machinery, and the lot on which these were situated. 6th. A deed of trust from A. G. Edwards and Thomas J. Beirne to the trustees of Berthold & Ewing, dated the 22nd December, 1844.

The defendant then offered in evidence the following records and judgments, which were also excluded by the court: 1st. The Floating Dock and Insurance Company v. A. G. Edwards, H. H. Raisin and L. D. Cabanne. Process served 17th July, 1841, and judgment 24th February, 1842. 2nd. D. D. Page v. same defendants. Process served April, 1842; judgment 8th August, 1842. 3rd. L. B. Shaw v. A. G. Edwards and L. D. Cabanne. Process served 21st June, 1842, only on Edwards, and judgment rendered against him on the 8th August, 1842; satisfied on execution. 4th. Same v. same. Process served and judgment obtained on same day as in last case. Satisfied on execution. To which opinion of the court, the defendant excepted.

The court then gave the following instructions, on its own motion, to which the defendant, by his counsel, instantly excepted in writing. 1. The plaintiff's right to recover the slaves in question depends upon the validity of the conveyance made by Lucien D. Cabanne to the plaintiff and read in evidence in this case. And the validity of the said conveyance depends upon the facts whether the same was made in good faith and under circumstances which, in law, would justify the said Cabanne in transferring the said slaves to the plaintiff, in trust for the use and benefit of the wife of said Cabanne. If Lucien D. Cabanne at the time he made the said conveyance, was not indebted to the defendant or to other persons, or if he was indebted to defendant or others, and at the same time was in solvent circumstances, and the owner of property, exclusive of the slave in question, fully adequate in value and extent to liquidate and satisfy all of his indebtedness; and if the conveyance of the slaves in question was made in good faith and with no intent to hinder, delay or defraud the creditors existing or subsequent, of the said Cabanne, nor with intent on the part of the said Cabanne to secure to himself, for his own use and benefit, the services and hire of the said slaves, then, in such case and under such circumstances, it was lawful for said Cabanne to convey the said slaves by said deed, in trust for the benefit and use of his wife. Therefore, if the jurors believe from the evidence that the said conveyance to the plaintiff of the slaves in question was duly executed and made in good faith, by the said Lucien D. Cabanno acknowledged and recorded, and that the said conveyance was not made or contrived with the intent to hinder, delay or defraud the creditors, existing or subsequent, of the said Cabanne, nor with the intent to secure to him, the said Cabanne, the use and benefit of the said slaves, the jurors will find the issue for the plaintiff; but if the jurors shall believe from the evidence that the said conveyance was not made in good faith, or that the same was made or contrived with the intent to hinder, delay or defraud the creditors, existing or subsequent, of the said Cabanne, or made with intent, on the part of said Cabanne, to secure to himself the use and benefit of said slaves, the jurors will find the issue for the defendant. 2. If the jurors believe from the testimony that the trust deed of gift which was in evidence was made by L. D. Cabanne with the intent to hinder, delay or defraud his creditors, the said deed is inoperative as a legal conveyance to bar the rights of the defendant, Lane; if the jury also believe from the testimony that the debt due to said Lane existed at the time of making said deed, whether the form of said debt or the evidence of it were or were not afterwards changed.

The defendant then moved the court to give the following instructions: 1. If the jury believe from the evidence that the deed of gift which is in evidence was made by L. D. Cabanne, with the intent to secure the use of the two slaves for his own benefit, and that in fact the issues, slaves of said slaves, were in whole or in part applied to his benefit, then, as regards the defendant, Lane, the said debt must...

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39 cases
  • Lionberger v. Baker
    • United States
    • Missouri Supreme Court
    • October 31, 1885
    ...in case of a voluntary conveyance to prove that the grantor was solvent and not embarrassed at the time of the conveyance. Lane v. Kingsberry, 11 Mo. 402; Grimes v. Russell, 45 Mo. 431. (6) A conveyance without consideration or merely for love and affection made by an insolvent is void as a......
  • Walter v. Scofield
    • United States
    • Missouri Supreme Court
    • March 12, 1902
    ...expiration of four days, in which a motion for new trial may be filed, if the term so long continues. [Tidd's Practice, 903-905; Lane v. Kingsberry, 11 Mo. 402; St. Louis D. & L. Ass'n v. Augustin, 2 123.] And if such motion for new trial be filed the judgment is, of course, suspended until......
  • Riggs v. Price
    • United States
    • Missouri Supreme Court
    • March 15, 1919
    ... ... (9) A voluntary conveyance is not ... fraudulent per se as to existing creditors; the circumstances ... of each case must be considered. Lane v. Kingsbury, ... 11 Mo. 402; Walsh v. Ketchum, 84 Mo. 427; Welch ... v. Mann, 193 Mo. 325. (10) The fact of solvency is ... always presumed ... ...
  • May v. Gibler
    • United States
    • Missouri Supreme Court
    • March 24, 1928
    ... ... conveyance against pre-existing debts. Eddy v ... Baldwin, 32 Mo. 369; Land v. Kingsberry, 11 Mo ... 402; McDonald v. Cash, 45 Mo.App. 66; Hoffman v ... Nolte, 127 Mo. 120. (3) The actual intent is immaterial ... and regardless of ... ...
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