White v. Million
| Decision Date | 02 October 1905 |
| Citation | 89 S.W. 599,114 Mo.App. 70 |
| Parties | CHARLES C. WHITE, Appellant, v. GEORGE MILLION, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Atchison Circuit Court.--Hon. W. C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
W. E Mitchell and John P. Lewis for appellant.
(1) The court erred in refusing the peremptory instruction requested by the plaintiff. The plain facts of the case, stripped of the froth and verbiage injected into it for the sole purpose of mistifying and prejudicing the jury, fully warranted and required such instruction. (2) Under the facts, even if there were no question of landlord's lien, the father had a perfect right to make the purchase under that well known line of decisions, commencing with and following: Shelly v Boothe, 73 Mo. 74; Kiley v. Hickcox, 70 Mo.App 623. (3) The court erred in submitting to the jury any question of fraud or good faith. It was not merely a race between creditors, which Simpson Finnell had a right to make; but it was more than that; in so far as he held a lien, he was taking property in which he had an interest which was superior to all claims or claimants. (4) The court not only erred in refusing the peremptory instruction, but also erred in refusing appellant's instruction numbered 2, involving the effect of the landlord's lien on the hay. (5) The landlord was not only taking what he had the right to take, but, while the lien lasted, and that was for eight months after the levy, the crop was not subject to execution in faver of any third party. Knox v. Hunt and Porter, 18 Mo. 243-6; Sandes v. Ohlhausen, 51 Mo. 163; Price v. Roetzell's Adm., 56 Mo. 500; Davis v. Land, 88 Mo. 163; Bank v. Guthery, 127 Mo. 189; Holt v. Colyer et al., 71 Mo.App. 280; Lane v. Pollard, 11 Mo.App. 330; White v. Million, 102 Mo.App. 437; Stokes v. Burns, 132 Mo. 225.
T. S. Stevens and Hunt & Bailey for respondent.
(1) Appellant predicates error upon the submission to the jury of the question of fraud or good faith in the transaction between William Finnell and his father; also assumes that there was no evidence that the hay was not taken to apply on William's debt to his father. In this appellant is in error, as fraud was pleaded by defendant and there was the most convincing proof as found by the jury that the entire claim of Simpson Finnell against William was fraudulent in fact. (2) The court will not direct a verdict on the issue of bona fides of the sale of personal property, where the evidence thereon is conflicting. Frederick v. Allgaier, 88 Mo. 598; White v. Million, 102 Mo.App. 437. (3) It is only when the verdict is against all the reasonable probabilities, the entire evidence being considered, that an appellee court is authorized to conclude that the finding was the result of mistake, passion or prejudice. Hirsch v. U. S. Grand Lodge, 78 Mo.App. 358; State v. Shackelford, 148 Mo. 493. (4) The court cannot usurp the province of the jury, and when there is evidence to hang the verdict on, it must stand. Tower v. Pauley, 76 Mo.App. 287; Atchison, etc., Co. v. Saddler, 38 Kan. 128; Swan v. Waldo, 73 Iowa 749; Gilbert v. Railway, 11 Ind. 365; Muse v. Stern, 82 Va. 83. (5) The appellate court will never weigh evidence for the mere purpose of determining the preponderance. Iller v. Bland, 117 Ind. 457; Dickens v. Des Moines, 74 Ia. 216. (6) It is for the trial court in such cases to set aside the verdict and not the appellate court. Hays v. Meckle, 78 Mo.App. 383; Parsons v. Mayfield, 73 Mo.App. 309; Huth v. Dohle, 76 Mo.App. 671; Chouquette v. Railroad, 152 Mo. 152.
On September 24, 1901, Floyd J. Sullivan recovered judgment in the circuit court of Atchison county against Wm. Finnell, in the sum of $ 2,073.77. On October 30, following, he had an execution issued and placed in the hand of the sheriff (defendant here), who levied upon a quantity of hay in stack on the farm occupied by Finnell. Plaintiff brought this action in replevin to recover the property so seized, claiming that he owned it by purchase from Simpson Finnell, who bought it from William, the judgment debtor. The issues presented by the pleadings involve the good faith of the transfer. Defendant says it was fraudulently contrived to defraud William's creditors, while plaintiff insists that it was made in good faith. The case has been here before on plaintiff's appeal and was remanded for another trial on account of error found in the instructions given. [White v. Million, 102 Mo.App. 437, 76 S.W. 733.] On retrial defendant again prevailed and plaintiff a second time appealed.
The consideration of the sale made by William to his father, Simpson, was stated by him to be a pre-existing debt. In its instructions the court put it to the jury to say whether the debt itself had any existence in fact or was fraudulently concocted for William's benefit, and told them that "if William was not indebted to his father, or if indebted he took the hay, but not to be applied upon the debts and at a fair value, but intended thereby to assist William to avoid, hinder or delay other creditors, then such transaction would be fraudulent and void as to other creditors and this execution." Finding, either that the debt was fictitious, or if valid was fraudulently employed to shield William from the attacks of other creditors, the direction was given to return a verdict for defendant, provided the jury believed, from the evidence, plaintiff had knowledge of the fraud when he bought the hay. Plaintiff earnestly insists that the facts shown in evidence do not justify the submission of any issue to the jury, and that a verdict for him should have been peremptorily directed.
William over fifty years old, broken in health and beset with pecuniary troubles, was living with his family upon a farm of 268 acres, owned by his father at the time Sullivan obtained judgment. He had lived there for twenty-five years and had owned the place until five years before, when his misfortunes compelled him to convey it to his father. The hay in controversy was grown upon the land in 1901 during the pendency of Sullivan's suit. William owned it, together with some live stock and other personal property. The likelihood of its seizure by Sullivan, under execution, was discussed between father and son, and the conclusion reached to transfer all of the personal property, subject to execution, from son to father. The property, including this hay, was valued by William at $ 3,000. The consideration agreed upon was debts equalling that amount, among which were included two notes for one thousand dollars each, evidencing the rent of the farm for the years 1900-1. Although all of the property was, in the bill of sale executed by William, turned over in lump to pay the whole of the indebtedness, both parties to the transaction say it was the agreement between them to apply this particular hay to the payment of the rent note for the year 1901. A short time after the sale negotiations were opened by William's sons, with plaintiff, to sell him the hay. These culminated in the making of the sale which was consummated by Simpson in person. Plaintiff, without examination, bought it for $ 600, and immediately gave his check for that amount to Simpson, which the latter cashed. Plaintiff then commenced to haul the hay when he was stopped by the levy of Sullivan's execution. At different times after this Simpson gave William various sums of money, the exact amount is not shown, but from the admission of the parties themselves it is fair to say that in the aggregate they equalled or exceeded the amount which plaintiff paid for the hay. The two notes for the rent of the years 1900 and 1901 were produced at the trial, together with the written evidence of the other debts making up the consideration of the sale from William to Simpson, and the check, duly paid, which plaintiff gave to Simpson. Both of the Finnells said that the father had charged the son one thousand dollars per year for rent during the period of the latter's tenancy, and that notes had been given in settlement, but the notes for other years than those mentioned were not produced, nor was there anything written on the two that were, to indicate their payment. It appears that Simpson had an iron safe in which he kept valuable papers, and permitted William to use this safe with him, and when the sale was made the two rent notes were placed in an envelope in which William kept some of his papers. No rent was ever, in fact, paid by William to his father before this transaction, nor was any ever paid thereafter, although William continued to occupy the farm. Up to the time Sullivan obtained his judgment, William raised crops and live stock on the land and possessed considerable other personal property, but nothing ever occurred between father and son relative to the payment of the rent until this transaction, and then only in consequence of Sullivan's proceeding. After the sheriff seized the hay, plaintiff acted more as an impassive spectator than one who had an interest at stake. The Finnells initiated the replevin suit and obtained plaintiff's consent to the use of his name as a party plaintiff. A witness, introduced by defendant, stated that some time after the suit was started he had a conversation with plaintiff during which the...
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