15 Mo. 378 | Mo. | 1852
delivered the opinion of the court,
This is an action of ejectment commenced by the appellee, Cason, to recover certain lands in Callaway county. Both parties claim title under one James McKamey. The plaintiff claimed under the judgments and executions against McKamey and a sheriff’s sale of the property under the executions, at which sale the plaintiff, Cason, became the purchaser and received his deed. The judgments were recovered in October, 1847. The defendant, Murray, claimed under a deed made to him by McKamey in August, 1842. The Whole question in the case, as tried before the circuit court, was Whether this deed to Murray was made with intent to defraud McKa
. The plaintiff asked the court to give several instructions, and the court .gave eight at his request, to two of which the defendant excepted. Those excepted to are in these words: “That if the jury find from the evidence, that the conveyance from McKamey to Murray for the land, was made by McKamey and accepted by Murray with a view or intent to delay or to hinder the creditors of McKamey of their actions, or the collection of their debts, or with an intent to prevent a sacrifice of the property of McKamey, by a sale thereof by his creditors under execution, that then the jury are bound to find such conveyance fraudulent and void; notwithstanding they may even find that the said Murray did pay a valuable consideration for the land.”
“That even though by law, the said McKamey had a right to prefer Murray as a creditor — if Murray shall be found to be a creditor — yet if the jury find that this preference was contrived by McKamey and Murray, in the making of said deed, for the purpose or intent of preventing the other creditors of McKamey from sacrificing under execution the property of McKamey in the collection of their debts, or with an intent or design to delay or hinder said creditors, or any of them, from the collection of their debts of McKamey, that then said conveyance to Murray is unfair, unlawful, fraudulent and void as against the creditors of McKamey.”
The defendant asked the court to give instructions, and the court gave some and refused two, to which refusal the defendant excepted. The instructions refused are in these words:
“If Murray had a just demand against McKamey, and was bound as his security for the payment of debts to others, he had a right to buy McKamey’s property in order to pay himself and to secure himself against his liability, and if one of his objects and one of the purposes of McKamey in so doing was to prevent his property from being sacrificed under execution, such object was a lawful one, and does not render the deed void; provided, the jury believe that the defendant, Murray, did*381 no more than wa9 necessary to protect himself from loss by virtue of said preference.”
wIf the jury believe that the object of the parties to the conveyance, in making the same, was to prevent a sacrifice of the property of MeKamey, and that the preference of Murray as a creditor was only a means used to carry that object into effect, the deed is void; but if the jury believe that the object of the conveyance was a fair and bona fide intention to prefer Murray as a creditor, and to secure him from loas, and nothing more was done than was necessary for this object; the fact that the parties were also influenced by a desire to prevent a sacrifice of McKamey’s property, does not render the deed void.”
It is not necessary to quote books for the purpose of showing, that a debtor in failing circumstances may give a preference to one or more of his creditors, to the exclusion of others, and that such disposition of his effects is not impeachable on the ground of fraud, because it embraces all his property. It may be assumed that this principle is so universally known as to render a reference to books unnecessary.
It may also be assumed, as a principle of law well understood, whenever a statute against fraudulent conveyances, like the English statutes of Elizabeth, exists, that a deed, although made for valuable and adequate consideration, may still be void as to creditors of the grantor, because of the intent with which it is made.
If we examine the instructions, asked and given for the plaintiff', Ca-son, and excepted to, we will find this latter principle carried to an extent not warranted by any construction which our statute against fraudulent conveyances has ever received. The jury are told in the first instruction excepted to — being the seventh in the order in which the instructions were asked — that if they find that the conveyance from McKamey to Murray was made and accepted with intent to delay or hinder the creditors of McKamey of their actions, or the collection of their debts, or, with an intent to prevent a sacrifice of the property of McKamey, by a sale thereof by his creditors under execution, then the |ury are bound to find such conveyance fraudulent and void, notwithstanding Murray paid a valuable consideration for the land. It is to be observed, that the jury are told in this instruction, that there are two intents, either of which will render a deed, made upon a full consideration, fraudulent and void as to creditors; the first is, the intent to hinder or delay the creditors; the second is, an intent to prevent the sacrifice of the property by a sale under the execution of the creditors. Under the latter clause of this instruction, a deed should be void in a case in which an honest debtor, in failing circumstances, should sell iris
In considering the instructions, asked by the defendant and refused by the court, they appear to be framed with a view to qualify the instructions previously given at the request of the plaintiff. If the court had not previously asserted, in the instructions for the plaintiff, that an. intent to prevent the sacrifice of McKamey’s property, was an unlawful intent that avoided the deed, these two instructions would not have been asked, or certainly would not have been asked in their present shape. The first of these two ought to have been given, after the court had given those asked by the plaintiff; and the latter clause of the second should also have been given as a qualification of the plaintiff’s in-
The judgment of the circuit courtis reversed and the cause remanded.