State v. Mason

• Decision Date: 20 December 1888
• Citation: 10 S.W. 179,96 Mo. 559
• Parties: STATE, to Use of KRAMER et al., v. MASON et al.
• Court: Missouri Supreme Court

10 S.W. 179

96 Mo. 559

STATE, to Use of KRAMER et al., v. MASON et al.

Supreme Court of Missouri.

December 20, 1888.

1. FRAUDULENT CONVEYANCES — SALES TO ACCOMMODATION INDORSERS.

Accommodation indorsers may, on assuming the payment of the note, take in satisfaction of their liability, at its fair value, property of the principal debtor, who is insolvent, as they are to be regarded as creditors, and not as mere purchasers.

2. TRIAL — INSTRUCTIONS — ASSUMPTION OF FACTS.

An instruction that a sale would be void if the purchaser knew of the fraudulent purpose of the insolvent, etc., is properly refused, as it assumes the existence of a fraudulent intent.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Action by the state to the use of Abraham Kramer and Adolph Loth, copartners under the style of Kramer & Loth, upon a sheriff's bond executed by Isaac Mason, sheriff of the city of St. Louis, as principal, and Thomas Griffith, Joseph W. Branch, Martin Collins, Anthony Ittner, and Samuel Hoffman, as sureties. The cause of action was the alleged wrongful attachment, as the property of one Isaac Trepp, of merchandise, which plaintiffs allege had been transferred to them in payment of Trepp's indebtedness to them. Defendants contended that such transfer was fraudulent, and requested the following instructions, which were refused:

"(1) The court instructs the jury that an actual agreement or conspiracy between Trepp and Kramer that the latter would aid the former to defraud his creditors, does not have to be shown. It is sufficient to avoid the sale if the jury believe from the facts and circumstances that Kramer either knew of the fraudulent purpose of Trepp, or, having good reason to suspect it, purposely refused to make inquiry, and remained willfully ignorant.

"(2) The court instructs the jury that the plaintiffs, Kramer & Loth, were merely indorsers upon the note made by Trepp to their order for three thousand dollars, which has been read in evidence; that on the 18th day of April, 1883, when plaintiffs obtained the goods in controversy in this action from Trepp, the said note upon which said plaintiffs were thus indorsers was not due and payable. Hence the court instructs the jury, as a matter of law, that notwithstanding the execution by Trepp of the paper signed by him, which has been read in evidence, the plaintiffs were not then creditors of the said Trepp, with respect to the said note for three thousand dollars, in any sense whatever.

"The jury are further instructed that the right and title of plaintiffs in and to such goods as were taken in satisfaction of said note consequently depend upon the consideration whether, by reason of the facts and circumstances developed by the testimony, said plaintiffs were purchasers in good faith from Trepp of that portion of the goods; and before the jury can find that plaintiffs were such purchasers in good faith, they must believe from the evidence — First, that plaintiffs bought without notice of any bad intent on the part of Trepp, (if the jury find that there was any such bad intent;) secondly, that plaintiffs bought the property for a valuable consideration; and, thirdly, that the plaintiffs actually paid the purchase money before they had notice of such bad intent on the part of Trepp. If, therefore, the jury find from the evidence that as to the purchase these three conditions have not been satisfied, there can be no recovery in this action, unless the jury further believe from the evidence that the plaintiffs were creditors to the extent of the note for $529.06, read in evidence, and the open account for $171.68, also shown in evidence, and that, in payment of such last-named note and account received from Trepp, that portion of the goods sued for which the jury believe was sufficient in point of reasonable value to satisfy such note and account; and unless, also, the jury find, not only that the conditions of purchase heretofore indicated have been satisfied as to the balance of the goods in controversy, but are able from the evidence to distinguish and separate that portion of the goods taken by way of purchase from the remainder of the goods taken by way of preference. And even as to those goods taken by way of preference there can be no recovery in this action if the jury believe from the evidence that in making such disposition of them Trepp thereby intended to hinder, delay, or defraud his creditors, other than those preferred, and that plaintiffs participated in, or were privy to, such fraudulent intent or purpose.

"Under the first branch of this instruction, in determining whether plaintiffs, as purchasers, were aware, either at the time they took the goods or before the time when the jury believe from the evidence they paid for them, of a fraudulent intent on the part of Trepp in making such disposition of the goods, it is not necessary that the jury should believe from the evidence that the...