Bauer Grocery Co. v. Smith

74 Mo. App. 419 | Mo. Ct. App. | 1898

Ellison, J.

statement. — This case will be found reported in 61 Mo. App. 665, this being the second appeal. The action is attachment on the ground that defendant had fraudulently conveyed his property so as to hinder or delay his creditors and that he had fraudulently concealed his'property so as to hinder and delay his creditors. The contest is on the plea in abatement. The grounds of attachment relate solely to a chattel mortgage on a stock of general merchandise which defendant executed to some third parties, the mortgage being duly recorded. There is no pretense of the mortgage being fraudulent on its face, reliance being placed on acts done under the mortgage since its execution. Those acts are, first, that the mortgagor remained in possession of the goods and disposed of them for his own benefit in the usual course of trade; and, second, that after the original, stock mortgaged had been entirely sold out and had been replaced by other goods, and the mortgage debt had been paid, the defendant permitted the mortgage to remain unsatisfied on the records and used it as a means to cover the new stock.

veyances: voig£ge?existing creditors. It is conceded that plaintiff became a creditor of defendant after the mortgage was executed and recorded, and there is no proof that defendant intended, at the time he executed the mortgage, to defraud those to whom he might subsequently become indebted. It is well settled that a voluntary conveyance can only be avoided by existing creditors, unless made with a view to subsequent debts. Pepper v. Carter, 11 Mo. 540; Payne v. Stanton, 59 Mo. 158; Lionberger v. Baker, 88 Mo. 447; Frank v. Carothers, 108 Mo. 569; Bucks v. Moore, 36 Mo. App. 529; Loehr v. Murphy, 45 Mo. App. 519. The rule may be stated in broader terms, viz.: Though the conveyance be executed with intent to defraud existing creditors, yet it can not be attacked by subsequent creditors, since no fraudulent purpose antecedently carried out could affect them. Bonney v. Taylor, 90 Mo. 63; Baker v. Gilman, 52 Barb. 26; Kane v. Roberts, 40 Md. 590; Monroe v. Smith, 79 Pa. St. 459. The rule however ought not to be stated in such breadth without the qualification that if the grantor makes the conveyance intending to engage in some hazardous business where debts will likely be incurred, subsequent creditors may assail the conveyance. Fisher v. Lewis, 69 Mo. 629; Monroe v. Smith, supra. Applying the rule to the facts of the case before us as above stated, we find that plaintiff, being a subsequent creditor, the mortgage was not a fraudulent conveyance as to him and that part of the charge in the affidavit for attachment must fail.

“¿rStgÍgeeto consfatut™perty: As to the second ground, we hold, as stated on the former appeal, that notwithstanding the mortgage was not a fraudulent conveyance, yet if, after it had served its purpose as a security from the defendant t° his mortgagees by the debt beeoming liquidated, and after the original stock of merchandise had been sold off and replaced by other merchandise answering the-general description of the original stock, the defendant allowed it to remain unsatisfied with a view of having it continue apparently a live instrument to cover the new stock, it was a fraudulent concealment of his property, within the terms of subdivision 8, of section 521 of the statute relating to attachments.

~ro^rtyfS'of taSímem. al~ It seems that it was a matter of contest both in the former and the last trial that though one executes a fraudulent mortgage, either fraudulent inlaw or fact, if the chattels conveyed have been sold or have passed out of existence, the act is not cause for attachment. The point is not well made. The fraudulent act is cause for attachment as to existing creditors (or subsequent ones if made with a view of defrauding them as above stated) notwithstanding the transaction is long past and the chattels conveyed have ceased to exist. The attachment writ is not confined in its operation to the goods or chattels fraudulently conveyed, and the mortgagor’s fraudulent act gives the creditor a right to lay hold of any of his property, no matter how old the act may be, so that it be within the period of limitation of the debt.

APPEI.I.A.TE and SLonOTOT: evidence. ' It is contended by plaintiff that the court erred in making use of the words preponderance of the evidence in defendant’s instructions. The point can not be urged by plaintiff since the same expression is used and adopted by plaintiff in instructions asked by him.

Nor do we think any harmful error was committed by the court permitting a witness to answer a question as to the value of the goods attached, since the same evidence had gone in without objection at an earlier stage of the trial. Conceding that, as an original proposition, such evidence was improper, it was not a substantial error materially affecting the merits of the controversy in the circumstances of this case.

In our opinion the other suggestions made against the judgment are not of sufficient moment to justify a reversal of the judgment and it is therefore affirmed.

All concur.