Murray v. Cason

• Decision Date: 31 January 1852
• Citation: 15 Mo. 378
• Parties: MURRAY v. CASON.
• Court: Missouri Supreme Court

15 Mo. 378

MURRAY

v.CASON.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM CALLAWAY CIRCUIT COURT.

LEONARD & HARDIN, for Appellant, cited: Holberd v. Anderson, 5 Tenn. R. 236; Wheaton v. Sexton, 4 Wheat. 505: Menx v. Howell, 4 East, 14; Wood v. Dixie, 53 Eng. Com. L. R. 892; Welder v. Fondey, 6 Cowen, 284.

HAYDEN & SHELEY, for Respondents. 1. The court below, in giving the instruction to the jury as to the law of the case, prayed for by the appellee (plaintiff below) committed no error. Butchin v. Thompson, 1 J. J. Marsh. 226; Ward v. Trotter, 3 Mon. 1; Sanders v. Alexander, 2 J. J. Marsh. 213; Croft v. Arthur, 1 Dessau. 223; 1 Barb. & Har. Dig. 575, § 66; Rev. Code, 525, title Fraudulent Conveyances, § 2; Beal v. Guernsey, 8 Johns. R. 449. 2. The court very properly rejected the instructions numbered six and seven, asked by appellant, Murray, for two reasons. First, they are against the law of the case, and, second, because the instructions given by the court to the jury contained all the law of the case as applicable to the evidence given upon the trial. Sands v. Hildreth, 14 Johns. 493; Cadbury v. Nolen, 5 Barr, 320; Sands v. Codwise, 4 Johns. 582; Webb v. Daggett, 2 Barbour, 1; Peck v. Land, 2 Kelly, 14; Cadogan v. Kennett, 2 Cooper, 240.

GAMBLE, J.

This is an action of ejectment commenced by the appellee, Cason, to recover certain lands in Callaway county. Both parties claim title under one James McKamey. The plaintiff claimed under the judgments and executions against McKamey and a sheriff's sale of the property under the executions, at which sale the plaintiff, Cason, became the purchaser, and received his deed. The judgments were recovered in October, 1847. The defendant, Murray, claimed under a deed made to him by McKamey in August, 1842. The whole question in the case, as tried before the Circuit Court, was whether this deed to Murray was made with intent to defraud McKamey's creditors; and so was void as to Cason, the purchaser on execution. The plaintiff gave evidence showing the indebtedness of McKamey at the time of making the deed to Murray, to the individuals who recovered the judgments under which the property was sold, as well as to other persons. He further gave evidence to impeach the good faith of the parties to the deed from McKamey to Murray. Defendant gave evidence showing that at the date of the deed from McKamey to him, McKamey was indebted to him, and that he had become responsible for other debts of McKamey as his security to a considerable amount, some or all of which he had subsequently paid.

The plaintiff asked the court to give several instructions, and the court gave eight at his request, to two of which the defendant excepted. Those excepted to are in these words: “That if the jury find, from the evidence, that the conveyance from McKamey to Murray for the land was made by McKamey and accepted by Murray with a view or intent to delay or hinder the creditors of McKamey of their actions, or the collection of their debts, or with an intent to prevent a sacrifice of the property of McKamey, by a sale thereof by his creditors under execution, that then the jury are bound to find such conveyance fraudulent and void, notwithstanding they may even find that the said Murray did pay a valuable consideration for the land.”

“That even though by law the said McKamey had a right to prefer Murray as a creditor--if Murray shall be found to be a creditor--yet if the jury find that this preference was contrived by McKamey and Murray, in the making of said deed, for the purpose or intent of preventing the other creditors of McKamey from sacrificing under execution the property of McKamey, in the collection of their debts, or with an intent or design to delay or hinder said creditors, or any of them, from the collection of their debts of McKamey, that then said conveyance to Murray is unfair, unlawful, fraudulent and void as against the creditors of McKamey.”

The defendant asked the court to give instructions, and the court gave some and refused two, to which refusal the defendant excepted. The instructions refused are in these words: 1. “If Murray had a just demand against McKamey, and was bound as his security for the payment of debts to others, he had a right to buy McKamey's property in order to pay himself and to secure himself against his liability, and if one of his objects and one of the purposes of McKamey in so doing was to prevent his property from being sacrificed under execution, such object was a lawful one, and does not render the deed void; provided the jury believe that the defendant, Murray, did no more than was necessary to protect himself from loss by virtue of said preference. 2. If the jury believe that the object of the parties to the conveyance, in making the same, was to prevent a sacrifice of the property of McKamey, and that the preference of Murray as a creditor was only a means used to carry that object into effect, the deed is void; but if the jury believe that the object of the conveyance was a fair and bona fide intention to prefer Murray as a creditor, and to secure...