Tupper v. Thompson

• Decision Date: 02 March 1880
• Citation: 26 Minn. 385
• Parties: IRA W. TUPPER <I>vs.</I> NATHANIEL R. THOMPSON.
• Court: Minnesota Supreme Court

26 Minn. 385

IRA W. TUPPERvs.

NATHANIEL R. THOMPSON.

Supreme Court of Minnesota.

March 2, 1880.

Action to recover possession of two horses, alleged in the complaint to belong to plaintiff, and to have been taken from his possession by defendant. In his answer the defendant denied plaintiff's title, alleged title in one D. W. Tupper, plaintiff's father, and justified the taking, as sheriff, under an execution against D. W. Tupper. At the trial in the district court for Hennepin county, before Young, J., the plaintiff testified that the horses had been given to him by his father. The defendant offered in evidence the judgment roll and execution under which he took the property, showing that the debt on which the judgment was recovered (a promissory note attached to the judgment roll) was due when the alleged gift was made, and offered to prove that when the gift was made, plaintiff's father was insolvent, and made it with intent to defraud his creditors. All this evidence was excluded, on the ground that the answer did not allege such insolvency or such fraudulent transfer, and the defendant excepted. The same ruling was repeated in the charge, the court instructing the jury that there was no question of fraud in the case. The verdict was for plaintiff, a new trial was refused, and the defendant appealed.

Benton, Benton & Roberts, for appellant.

Geo. W. Hael, for respondent.

CORNELL, J.

A voluntary transfer of personal property by an insolvent debtor, by gift, or upon the consideration of a promised future support of the debtor, necessarily tends to prejudice and delay the just claims of his creditors, and is prima facie evidence of a fraudulent intent. The result in either case is to place the property beyond the reach of creditors, and, in the latter, to secure to the debtor the use and benefit of its avails. As against the creditors, the law pronounces such a transaction fraudulent and void, and ineffectual to pass any title from the debtor. The attempted transfer may be treated as a nullity, and the property subjected to seizure and sale upon execution, at the instance of any judgment creditor, the same as though no transfer had been made. Henry v. Hinman, 25 Minn. 199. Upon a simple issue of ownership, alleged in the complaint and denied in the answer, no source of title being indicated in the former, between a plaintiff claiming title to the property on the trial under such a transfer, and a defendant shown to be in possession as sheriff,...