150 N.W. 299 | S.D. | 1914
Appellant, claiming to be the owner, by assignment, of two certain promissory notes, placed the same in a bank for collection. The notes- were originally payable to one Ed. J. Gotthelf, -and certain payments, aggregating $2,304.94, made thereon to the bank, were seized by respondent as sheriff of Minnehaha county, under an execution issued upon the judgment in the case of McEwen v. Gotthelf, 31 S. D. 180, 140 N. W. 264, heretofore affirmed by this court. Both of the said notes were executed on the 1st day of September, 1911, are payable on the 1st day of September, 1915, -and draw interest at the rate of 6 per cent, per annum-. It is claimed by appellant that one of said notes was indorsed and assigned by the said Gotthelf to Mary Gotthelf, his wife, and was by her indorsed and assign-, ed to appellant; that the other one was indorsed and assigned by
The case was tried to> a jury, and the genuineness of the transaction between the Gotthelfs and the appellant was the only issue submitted. The jury, having ' found agffinst appellant on that issue, and a motion for a new trial having- been overruled by the trial court, the case i-s brought here for review.
Respondent, being dissatisfied with the statement of facts contained in appellant’s brief, filed an additional statement. Appellant, in turn,- questions the correctness of such additional state
Upon her cross-examination appellant at great length went into the details of the negotiations leading up to the alleged purchase of the notes, the manner of paying for them, and the source from which she had derived and accumulated the means with which she made the purchase. The Gotthelfs went into equal detail relative to the sale of the notes and the disposition of the proceeds therefrom.
The evidence in this case is so voluminous that it is not practicable to go into an extended review thereof. Tt is not claimed, however, that there is any direct evidence of fraud, or participation in fraud, by appellant. But this is not necessary. Fraud and knowledge of intended fraud may be shown by circumstantial evidence; and, after a careful consideration .of all' the evidence in this case, the conclusion is irresistible that this transaction was fraudulent; and certainly the evidence is sufficient, if competent and submitted under proper instructions, to sustain the verdict.
“If you are satisfied that Ed. J. Gotthelf, in disposing of the notes described in the complaint, made such disposition with the intent to defraud his creditors, and Mrs. Cole knew of such intent, or if Mrs.' Cole was aware of such facts and circumstances as would put a-reasonably prudent person on inquiry concerning such intentions, and she failed io make such inquiry, then in either of these events she could not recover, and your verdict must be for the defendant.”
“Where one buys property, if that person intends by such transfer to defraud creditors, and if the purchaser knows of that intent, or has sufficient knowledge of the facts and circumstances to put him -or her upon guard — that is, if the facts are before a person to give a reasonable person notice, under all the circumstances of probable fraud- — then the transfer is fraudulentas agrEst creditors.”
These instructions are excepted to, upon' the ground that they are not warranted by the evidence in the case, and upon tire further ground that there is no evidence to show that Ed. J. Gotthelf was insolvent at the time of the alleged sale of said notes, or that he was not, at that time, possessed of sufficient property other than the notes to meet all his debts.
It is very doubtful if there are any sufficient exceptions to these instructions; and, if there are no exceptions, then, of course, the instructions must stand as the law of the case. But, conceding the exceptions to be sufficient, they are of no avail to appellant. The instructions are a correct statement of the rule of law applicable to such cases, and, as above stated, we believe the evidence disclosed by -the record is sufficient to have put appellant upon inquiry, and charged her with notice of the intent
Finding no error in the record, the judgment and order appealed from are affirmed.