State ex rel. Heye v. Frank

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 46
• Parties: THE STATE OF MISSOURI TO THE USE OF ANNIE M. HEYE, Respondent, v. A. FRANK ET AL., Appellants.
• Court: Missouri Court of Appeals

22 Mo.App. 46

THE STATE OF MISSOURI TO THE USE OF ANNIE M. HEYE, Respondent,

v.A. FRANK ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

NATHAN FRANK and GILLIAM & FERRIS, for the appellants: The facts show a sale of property to which the law of preference of creditors does not apply. MacVeiyh v. Baxter, 82 Mo. 518; Holmes v. Braidwood, 82 Mo. 610; Rupee v. Alkire, 77 Mo. 641: Forrester v. Moore, 77 Mo. 651. The purchaser need not be actually aware of the intent on the part of the debtor to vitiate the sale. It is sufficient if it be shown that he had notice of such facts as would have put a man of ordinary prudence upon inquiry, which inquiry, made, with ordinary diligence, would have led to a knowledge of the fraudulent purpose or intent of the seller. Jones v. Heatherington, 45 Iowa 681; Williamson v. Wachenheim, 58 Iowa 279; Weiss v. Brennan, 41 Super. Ct. N. Y. (J. & S.) 177. The doctrine here asserted as to what constitutes a bona fide purchaser has been applied with commendable accuracy by the supreme court of Missouri in recent cases. Dougherty v. Cooper, 77 Mo. 528; Arnholt v. Hartwig, 73 Mo. 485. The amount for which the judgment was asked in the petition was two thousand, seven hundred dollars; the verdict of the jury was for two thousand, nine hundred and forty-three dollars, two hundred and forty-three dollars in excess of the amount asked for in the petition; a judgment upon this verdict would certainly have been an error. Kelly v. Third National Bank, 64 Ill. 541; Cox v. St. Louis, 11 Mo. 431.

W. C. JONES and A. R. TAYLOR, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action upon an indemnity bond, taken by the sheriff of the city of St. Louis, in certain proceedings by attachment, instituted by Abraham Frank et al., against one Gutbrod.

The relatrix, Anna Heye, claimed the goods levied upon under the writ of attachment from the sheriff, and stated in her claim that she was in good faith the sole owner thereof, and that their value was three thousand, eight hundred dollars. There was no schedule of the goods attached to her claim. The sheriff, upon the request of the defendants, and other attaching creditors, had all the goods seized on the various writs of attachment, inventoried and appraised by sworn appraisers, who returned an appraisement showing a detailed valuation. The appraisement thus made gave the value of all the goods seized as amounting to two thousand, three hundred dollars, and the value of those seized upon the defendant's writ as amounting to one thousand, three hundred and fifty dollars.

The defendants thereupon executed the bond herein sued upon, which is in the penal sum of two thousand, seven hundred dollars. Upon the trial of the cause the jury found a verdict for the relatrix for two thousand, nine hundred and forty-three dollars, or two hundred and forty-three dollars more than the penalty of the bond, and the amount sued for. The defendants filed a motion for a new trial and in arrest of judgment, whereupon the relatrix first remitted two hundred and forty-three dollars, and, subsequently, upon suggestion of the court, the further sum of $519.99. This being done, the court overruled the motions of the defendants, and entered judgment in favor of the relatrix for the residue of two thousand, one hundred and eighty dollars.

As in actions upon penal bonds judgment should be entered for the penalty, with an award of execution for the damages assessed, the judgment entry thus made was irregular. This defect, however, might be corrected here, provided we come to the conclusion that the judgment should be permitted to stand in other respects.

Concerning the main facts of the controversy there is little dispute. The evidence concedes that Gutbrod went into business in May, 1881, with a capital of two thousand dollars. Of this amount three hundred dollars was his own money, and the residue borrowed from his mother-in-law, Louisa Heye, who is the mother of the present relatrix, and a resident of St. Charles, Missouri. The evidence also concedes that Annie Heye, the relatrix, was, at the date of the alleged sale, Gutbrod's sister-in-law, clerking in his store, and possessed of no means whatever.

On the sixteenth of November, 1882, Gutbrod, being then in greatly embarrassed circumstances, and pushed by his creditors, executed a bill of sale of all the goods in the store to his sister-in-law. To use his own words: “There was no inventory taken; never took one while I was in business; sold out lock, stock, and barrel, without an inventory; we guessed at it; that is the way we arrived at the price.”

In other respects he states the transaction as follows: “On the fourteenth, after I saw him (his counsel), I went down to the store and saw my sister-in-law, the plaintiff Annie M. Heye. I asked her whether she would like to buy the store, that the place was not paying me, that I was losing money every day. I told her she could run it under smaller expense, as she did not have so much to support; that I had a family to support, and I would only lose money to my creditors to continue in business. I told her I was going up to St. Charles to speak to her mother about it, and see whether we could make arrangements that she could buy it for her.”

He then went to St. Charles, told his mother-in-law about it, and told her that she had better buy the place for Annie; that he wanted to pay her in full, and would turn the balance of the money he realized over to his creditors.

Next morning he and his mother-in-law went to his counsel, had a bill of sale written out, and three notes made by his mother-in-law, aggregating one thousand, nine hundred and twenty-six dollars, which bill of sale and notes he took down to the store, and, to use his own words: “I explained the thing to my sister-in-law, told her my mother-in-law had bought the place, and stated the price, and asked her if she was satisfied. She said she was. I showed her the bill of sale, and she indorsed the notes and handed them to me.”

He further testified: “When I received the...