8 Kan. 267 | Kan. | 1871
The opinion of the court was delivered by
Annie P. Wallace sued John Arthur in the district court in an action of replevin to recover the possession of a piano, and damages for its detention. The verdict was for the plaintiff for the possession of the piano and $300 damages. Plaintiff remitted $240 of the damages, and judgment was entered for the balance and for the possession of the property. The defendant now seeks a reversal of that judgment.
“ lst.-In order to make a voluntary conveyance fraudulent, and therefore void as to creditors, either existing or subsequent, it is indispensable that the said voluntary conveyance shall transfer property which would be liable to be taken in execution for the payment of debts.
“ 2d.-If there was a voluntary conveyance of the property made in good faith, not for the purpose of defrauding or defeating creditors, and in point of fact took no property subject to execution, then it makes no difference about the consideration, whether there was any or not, between the donor and donee.”
Without going into any speculative inquiry as to whether these instructions would be correct as applied to every case of a voluntary conveyance of exempt property, we think they are correct as applied to the present. It is difficult to see what application the second section of the Statute of Frauds and Perjuries can have. That provides that “every gift, grant, or conveyance made with intent to hinder, delay or defraud creditors of their just and lawful debts shall be void.” Now it is not disputed that the piano remaining the property of Mrs. O. G. Wallace would have been exempt from levy under Bartlett’s judgment. So long then as she held it, Bartlett could not take it. It was as free from his touch as though it were not. Nemaining in her hands, it gave him no security, added nothing to his ability to compel payment. How then can any disposition she might choose to make of it hinder, delay, or defraud him? He could get no hold upon it, while she kept it. How much did he lose, then, when she parted with it? And how could she be held to have made a gift with intent to hinder, delay, or defraud, when the gift neither had nor could possibly have any such effect? It is not merely the thought which passes in the mind,'but the thought coupled with the possibility of the act done accomplishing the evil intended, which renders the act void. •
dered, the verdict was received and the jury discharged. Then a motion for a new trial was filed alleging as one reason therefor “that the jury refused or neglected to find the special questions of fact as directed by the court.” We think this objection came too late. Whatever may be the rule where the jury wholly ignore the special questions submitted, we think that when they attempt an answer, and the only objection that can be made is that it is not sufficiently full, attention should be called to the deficiency when the verdict is returned and an opportunity given to make it more full and specific. By the general verdict they have passed upon all the issues between the parties; and it would be hard to disturb this general verdict because some answer to a specific question is not sufficiently full, when the defect could easily have been cured by calling attention to it at the time the verdict was rendered. (Hazard Powder Co. v. Viergutz, 6 Kas., 471.)
The case will therefore be remanded to the district court with instructions that if the defendant in error shall, within such reasonable 'time as the judge of that court may direct, remit all damages awarded, the judgment for possession shall stand; and that otherwise the judgment be reversed and anew trial awarded. Die costs in this court must be divided between the parties. Ordered accordingly.