McVeagh v. Baxter

• Decision Date: 31 October 1884
• Citation: 82 Mo. 518
• Parties: MCVEAGH et al., Appellants, v. BAXTER et al.; CURTISS, Interpleader.
• Court: Missouri Supreme Court

82 Mo. 518

MCVEAGH et al., Appellants,

v.BAXTER et al.; CURTISS, Interpleader.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

REVERSED.

Karnes & Ess for appellants.

Instruction number two given for the interpleader, Curtiss, is in direct conflict with numbers one and four, given for the plaintiffs in the attachment. If one, knowing that a debtor is selling his property to hinder, delay or avoid the payment of his debts, buys it, and pays the full value for it, such sales will be adjudged fraudulent. Shelley v. Boothe, 73 Mo. 74; Bump on Fraud. Con., (3 Ed.) pp. 199, et seq; Clements v. Moore, 6 Wall. 299; Fishel v. Lockard, 52 Ga. 632; Christian v. Greenwood, 23 Ark. 258; Weisiger v. Chisholm, 22 Tex. 670; Gardinier v. Otis, 13 Wis. 460; Harrison v. Jaquess, 29 Ind. 208; State to use, etc., v. Estel, 6 Mo. App. 6. It is not necessary that the purchaser should have meant to aid and assist the debtor in defrauding his other creditors. If he knew that such was his purpose and design in transferring the property, that is sufficient. The creditor will be permitted, if necessary, to take to himself the entire property of the debtor to secure his debt, even though the debtor declare his intention in making such a transfer to be to hinder and delay other creditors.Lathrop & Smith for respondent.

(1) The first instruction given for the interpleader is a correct declaration of the law. State to use, etc., v. Laurie, 1 Mo. App. 370; Forrester v. Moore, 77 Mo. 651; Thornton v. Tandy, 39 Tex. 544. (2) It was not error to give the second instruction for the interpleader. Little v. Eddy, 14 Mo. 160; State to use v. Laurie, supra; Shelley v. Boothe, 73 Mo. 74; Gaff v. Stern, 12 Mo. App. 115; Forrester v. Moore, supra; Dudley v. Danforth, 61 N. Y. 626. (3) Under the facts of the case the fifth instruction for the interpleader was entirely proper. Beurmann v. Van Buren, 44 Mich. 496; State to use v. Laurie, supra; Gaff v. Stern, supra; Forrester v. Moore, supra. Plaintiffs' instructions numbered one and four, ought not to have been given. But the verdict having been against plaintiffs in the face of instructions far more favorable to them than the law would warrant, they cannot be heard to complain because they were given, or because they were inconsistent with others which properly declared the law. Thornton v. Tandy, supra; Little v. Eddy, 14 Mo. 160, 164; Smith v. City of St. Joseph, 45 Mo. 449, 452.

HENRY, J.

The defendants, Baxter & Tuttle, were retail grocery merchants in Kansas City, and on December 7th, 1880, owed Curtiss $605 for borrowed money, and a firm in which Curtiss had an interest, $630 for merchandise. They also owed one Tomlinson $150, and Lathrop & Smith, attorneys, $100 for professional services. They were also indebted to the plaintiffs in the sum of $1,260. Baxter & Tuttle were insolvent, and Curtiss, in order to secure the debt they owed him, on the 7th day of December, 1880, purchased their stock of goods at the price of $2,485, which was paid by receipting to them for the amount they owed him and the firm in which he was concerned, by the assumption of Tomlinson and Lathrop & Smith's debts and payment of $500 to each of defendants.

Plaintiffs sued Baxter & Tuttle in attachment, and Curtiss filed an interplea, claiming the property in question upon which the officer had levied the attachment. On this interplea there was a trial, which resulted in a verdict for the interpleader and a judgment accordingly, from which this appeal is taken.

The evidence in behalf of the interpleader tended to prove that his object in buying the property was to secure his debt, and that he would not otherwise have made the purchase; that the price paid was a fair valuation of the goods, and that there was no intention on his part to hinder or delay other creditors, or to place beyond their reach the $1,000 cash paid to Baxter & Tuttle. On the other hand evidence adduced by plaintiffs tended to prove that Batxer & Tuttle sold to Curtiss, not only for the purpose of preferring him, Lathrop & Smith, Tomlinson and Sauer & Co., the firm in which Curtiss was concerned, but, also, for the further purpose of securing to themselves the $1,000 paid to them and placing it beyond the reach of their other creditors, and that Curtiss had knowledge of such purpose.

The court gave, at the instance of the interpleader, the following instruction, among others:

2. Even though the jury may believe from the evidence that Baxter & Tuttle may have intended to hinder, delay or defraud their creditors by the sale of the goods in controversy to Curtiss, yet such intention does not affect the rights of Curtiss under said sale, unless the jury further find that said Curtiss, knowing such intention on the part of Baxter & Tuttle, meant by such purchase to aid and assist said Baxter & Tuttle in so hindering, delaying or defrauding their creditors, and not merely to honestly secure his own debt.

Instructions were also given at the instance of plaintiffs, to the effect that if Baxter & Tuttle had a purpose in making the sale to Curtiss to place the $1,000 beyond the reach of...