Richards v. Levin

• Decision Date: 31 October 1852
• Citation: 16 Mo. 596
• Court: Missouri Supreme Court
• Parties: RICHARDS & ROBINSON, Plaintiffs in Error, v. LEVIN, Defendant in Error.

16 Mo. 596

RICHARDS & ROBINSON, Plaintiffs in Error,

v.LEVIN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1852.

1. Where a debtor, in failing circumstances, assigns all his property for the benefit of certain preferred creditors, a clause in the deed of assignment, directing the surplus, if any, after paying the enumerated debts, to be paid to the grantor, will not make the deed fraudulent as to the other creditors, where it is admitted that the whole property is insufficient to pay even the preferred debts.

Error to Marion Circuit Court.

Richards & Robinson sued Levin by attachment, alleging, in the affidavit, that Levin had made, and was about to make, a fraudulent disposition of his property, so as to hinder, delay and defraud his creditors. Issue was taken by defendant on the affidavit, which was tried before the court sitting as a jury. The plaintiffs read in evidence a deed of assignment made by Levin to trustees, for the benefit of certain creditors, two or three days before the commencement of this suit. The deed of assignment contained a clause requiring the trustees, after paying the creditors named in the deed, to pay the surplus money, if any should be left from the sale of the assigned property, to Levin, the maker of the deed of assignment. This deed of assignment, and the evidence contained in the following written agreement of counsel, was all the testimony in the case. The written agreement was as follows: “Plaintiffs, on their part, agree in this cause, that the deed of assignment, dated February 25th, 1850, and signed by H. Levin, Wm. M. Cooke and R. F. Lakenan, and proof that Levin, at the date of that deed, was in failing circumstances, and that the property named in said deed was all the property then owned by Levin, and that Levin had, at the time of said assignment, other creditors to a large amount, besides those named in said deed of assignment, is all the evidence they have to support the affidavit herein. It is admitted by the plaintiffs that the debts set forth in the assignment above were just and valid debts, owed at the time by Levin. Defendant admits that all the facts set forth above, and relied on by plaintiffs, as evidence, are true. Plaintiffs admit that the amount of the debts in the deed of assignment exceeds the value of the property named therein.”

The plaintiffs asked the court to instruct that this testimony was evidence of fraud in fact and in law against Levin, sufficient to sustain a verdict against him in the premises; which instruction the court refused, and gave other and opposite instructions, to which plaintiffs excepted.

Richmond, Harrison & Hawkins, for plaintiffs in error. 1. The deed of assignment was in part a conveyance in trust for the use of the grantor, and, therefore, void by the first section of the act concerning fraudulent conveyances. R. C. 1845. 2. This is an attempt at an illegal transfer of property by a debtor in failing circumstances, for the benefit of a part only of his creditors in the first place, and, secondly, for his own use. It is, therefore, fraudulent and void. Goodrich v. Downs, 6 Hill, 438; Mackie v. Cairns, 5 Dow. 584; Strong v. Skinner, 4 Barb. S. C. Rep. 546; Dana, Adm'r, v. Lull, 17 Vt. Rep. 390; Harris v. Sumner, 2 Pick. 129; Burd v. Fitzsimons, 4 Dallas, 77; Passmore v. Eldridge, 12 Serg. & Rawle, 198. 3. This is such a fraudulent conveyance or assignment as is contemplated by the attachment act. R. C. 1845.

A. W. Lamb, for defendant in error. 1. In order to sustain the charge in the affidavit, plaintiffs were bound to prove a fraud in fact. It is the fraudulent intent with which a conveyance is made that...