Novelty Mfg. Co. v. Pratt
| Decision Date | 02 March 1886 |
| Citation | 21 Mo.App. 171 |
| Parties | NOVELTY MANUFACTURING COMPANY, Appellant, v. J. M. PRATT, Respondent. |
| Court | Kansas Court of Appeals |
APPEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.
Affirmed.
The case is stated in the opinion.
SILVER & BROWN and STEPHENS & SMITH, for the appellant.
I. A voluntary conveyance is prima facie evidence of an intent to defeat and defraud creditors, where the party making it, or procuring it made, is loaded with debt at the time. Holloway v. Milliard, 1 Maddock's Rep 225.
II. The transfers, in this case, according to the evidence of the defendant, were merely colorable. Where property is conveyed to a married woman to enable her husband to hold it, through her, as his own, the purchase money being paid by him, or the credit being given to him, the wife will be held to have taken the property in her name, for his use, and a trust would result to him for the benefit of creditors. McLaran v. Mead, 48 Mo. 115; vide Story's Eq Jurisp., sect. 349.
III. The undisputed evidence, being that of defendant himself shows that his wife never took actual possession of the stock of goods; never exercised any acts of visible or open ownership over it, hence the transfer to her was fraudulent as against creditors. Stern v. Henley, 68 Mo. 262.
IV. The verdict is, therefore, without evidence to support it, and the instruction asked by plaintiff should have been given, and those given for defendant were erroneous, and the judgment should be reversed.
J. B. WILCOX and A. W. MULLINS, for the respondent.
I. The plaintiff's instruction, which was refused, was inapplicable to any issue on trial. The first part of it assumed that defendant was insolvent; that he had creditors, and that fraud on his part was to be presumed. The instruction then changes from this theory to another. That is to say, that unless there was such change of possession from the sellers of the stock of goods to Mrs. Pratt, as would consummate the sale under the statute of frauds, that the jury must find for the plaintiff. This might have availed in a controversy between the sellers and some creditors of theirs, but in this case there was no such issue. Dinwiddie v. Jacobs, 82 Mo. 195; Comer v. Taylor, 82 Mo. 341.
II. The defendant's instructions fairly presented the real issues involved, as, for instance, the truth of at least one of the charges on which the attachment was grounded, the plea in abatement putting each of them in issue, and that fraud was not to be presumed, but that it devolved upon plaintiff to prove it. Chenault v. Chapron, 5 Mo. 538; Tucker v. Frederick, 28 Mo. 574; Drake on Attachment (5 Ed.) sects. 101, 409.
III. Where there is any evidence to support the finding in the lower court, the judgment must stand. Gillespie v. Stone, 43 Mo. 350; McAfee v. Ryan, 11 Mo. 364; Russell v. Berkstresser, 77 Mo. 417; Huckshorn v. Hartwig, 81 Mo. 648; The State v. Mansfield, 41 Mo. 470.
This is an action by attachment. The grounds of the attachment were four in number. The third ground was, that the defendant had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors. The defendant filed his plea in abatement, and a trial of the issues thus raised resulted in defendant's favor.
The plaintiff complains here that the trial court refused one instruction asked by it. The trial was had, it may be conceded, upon a theory too favorable to the defendant; but of this the plaintiff is not in a position to complain, because that theory was its theory, presented in its instructions. Having tried the issues in this proceeding upon one theory in the trial court, the plaintiff cannot have this court review the trial upon another theory.
There was sufficient evidence to support the finding of the jury under the instructions given for the plaintiff.
The single question presented for our determination is as to the refusal of the plaintiff's...
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