22 Mo. App. 80 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This appeal is prosecuted by the plaintiff from a judgment in favor of the defendant upon a trial by a jury of the issues made .by a plea in abatement to an attachment. The grounds of attachment, which the plea in abatement put in issue, were as follows:
££1. That defendant is about fraudulently to convey or assign his property or effects so as to hinder or delay his creditors.
££2. That defendant has fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors.
“3. That defendant has fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors.
“4. That defendant is about fraudulently to conceal, remove, or dispose of his property or effects so as to hinder or delay his .creditors.”
We may here dispose.of a point made in connection with this remarkable mortgage, a counterpart of which had been given by the defendant’s son, W. H. Pry, by which the two seemed to have virtually surrendered themselves and the gains of their future industry for an indefinite period of time in a sort of serfdom to the plaintiff. It is claimed that, whereas portions of the property which the defendant is charged, in the affidavit for the attachment, with having fraudulently disposed of or with being about fraudulently to dispose of, was at the time covered by this mortgage, it was incompetent for the defendant to vary its terms by oral testimony, showing a pre-existing agreement of a different character, relative to the same subject, between the plaintiff and himself ; and that it was erroneous, in view of the existence of this mortgage, for the court to instruct the
It, also, appeared that the day after the levy of the attachment the defendant had confessed judgments in favor of certain other creditors ; that a few days prior to the levy of the attachment, the defendant, through his son, W. H. Fry, sold the two mules and wagon to one Frier for two hundred and fifty dollars, which was a fair price, the defendant receiving the money; that a short time before the levy of the attachment, the defendant also sold, through his son, W. H. Fry, four small hogs to one Boyd, for fifteen dollars, which was also a fair price; that the son, W. H. Fry, also sold a mare belonging to him, W. H. Fry, which had been mortgaged by him to the plaintiff; that the plaintiff had W. H. Fry .arrested for selling this mortgaged mare, and that, in order to procure his release from the arrest, the defendant paid to the plaintiff the two hundred and fifty dollars which he had received from Mr. Frier for the sale of the mules and wagon. Mr. Boyd testified for the plaintiff to the effect that at the trial of Estes v. Wiginston — when that was, does not appear, but it seems to have been understood as nearly contemporaneous with the transactions in controversy — W. H. Fry had said that the notes had
On the other hand, the evidence of the defendant tended to show that he owed other creditors whom he desired to pay, and that he had made the sales of the property which he made, in good faith, for the purpose of paying other creditors, and also for the purpose of getting money to buy necessaries which his family were compelled to have to live on.
The court permitted the plaintiff to put in evidence depositions as to his general character. As the defendant does not complain of this, of course it is not a subject for revision here. But in connection with what we shall say hereafter, it indicates that the case was tried as much on the issue of the plaintiff’s character as on the issue of the defendant’s conduct. Such evidence was totally irrelevant.
Of the same character was evidence given by the defendant, against the objection of the plaintiff, to the effect that the plaintiff, at the time the attachment was levied, had the defendant’s farm advertised for sale under the deed of trust, and that it was a short time afterwards
The same observations may be made concerning a narrative, which was given in evidence by the defendant, of a long interview which took place at the time when the plaintiff, and a friend of the plaintiff, and the deputy sheriff, came to the house of the defendant, to levy the attachment. This narrative was to the effect that the plaintiff offered to give to the defendant two hundred and fifty dollars, if the defendant would surrender to the plaintiff the possession of his farm, and that, the plaintiff’s attorney even offered to supplement this with a gift of fifty dollars out of his own pocket; that the defendant refused these offers, whereupon the plaintiff directed the deputy sheriff to proceed to make the levy. This evidence had no conceivable bearing upon the question whether the defendant had fraudulently disposed of or concealed his property for the purpose of hindering or delaying his creditors. Its only purpose could have been, and its necessary effect was, to show that the plaintiff had a malicious motive in levying the attachment, that his object in doing it was to force the de
The court submitted the case to the jury upon six instructions requested by the plaintiff, and four requested by the defendant. The only instruction requested by the plaintiff, which the court refused, was the instruction already alluded to, which told the jury that if any of the property disposed of by the defendant was mortgaged to the plaintiff, the law presumed a fraudulent purpose in so disposing of it. For the reasons already stated this instruction need not be further considered.
Strenuous objections are made to the four instructions given at the request of the defendant, which were-as follows:
“1. The court instructs the jury that a debtor has aright to prefer or pay one creditor in preference to other creditors, and, although the jury may believe, from the evidence in the case, that the defendant, Fry, attempted, by the confessions of judgments in. favor of Borne of his creditors, -to give said creditors preference, and enable them to collect their debts; yet, if the jury further find from the testimony in the case that the-debts due said parties were honest and justly due from the defendant, and that the defendant acted in said matter for the purpose of securing said creditors, and not for the purpose of hindering, delaying, or defrauding his other creditors, then the confession of said judgments by the defendant will not authorize a finding of the issues in this case for the plaintiff.”
*87 “ 2. The court instructs the jury that the defendant, Fry, although indebted, had a right to sell and dispose of any property belonging to him, and although the jury may believe from the testimony in this case that the defendant Fry did sell a span of mules and wagon to one James I). Frier, and three or four hogs to one Boyd, yet, if the jury further find, from the evidence, that defendant made said sales for any honest or legitimate purpose, and not for the purpose of hindering, delaying, or defrauding his creditors, then the verdict of the-jury as to the issues submitted must be for the defendant, as far as the sale of said property is concerned.”
“3. The jury are instructed that the defendant’s right to dispose of his property for an honest purpose is not terminated by his indebtedness or insolvency, although the jury may believe from the evidence that the effect of such a disposition may or does have the effect of hindering and delaying his creditors.”
“4. Although the jury may believe from the evidence in this cause that defendant Fry was indebted to plaintiff Estes, yet the fact is no ground for an attachment, and although the jury may believe that the defendant did sell some of his property, yet if they find that he sold the same to pay a debt, or for the necessaries of life, and not for the purpose of cheating and defrauding his creditors, they will find for defendant, Jacob Fry.”
We see no tenable objection to the first of these instructions. It is not open to the objection that it singles out a portion of the evidence and makes the case turn upon that. It merely advises the jury as to the legal effect of certain facts shown in evidence, namely, of certain confessions of judgments, and the court correctly advised the jury in this instruction that confessions of judgment in favor of certain creditors, to whom the defendant was honestly indebted, for the mere purpose of preferring them, not for the purpose of hindering, delay
The fourth of the above instructions, also, seems to us to have been entirely proper. It is certainly true that the mere fact that a man is in debt does not authorize an attachment, or restrain the debtor from selling the property to pay a debt or to procure the necessaries of life. It is not worth while to dwell upon such a proposition. If this was the only object of the sales of chattels made by the defendant, and if there was no purpose of cheating or defrauding creditors, such sales certainly afforded no grounds for the attachment.
We also think that the third of the above instructions contains nothing about which substantial complaint can be made. It is true that it states to the jury a proposition in the most general terms, but the proposition is undoubtedly law. If the court had submitted the case to the jury upon broad and general statements of legal doctrine, without more, we should say that the case would be merely a case of non-direction — that the only fault committed by the court would have been the failure to give sufficiently specific instructions. But it is well settled that in civil cases mere non-direction is no ground for reversing the judgment, except where more specific and proper instructions are requested and refused. Drury v. White, 10 Mo. 354; Clark v. Hammerle, 27 Mo. 55, 70.
But the second of the above instructions goes beyond this and tells the jury that if the defendant made the sales of the chattels in question"“for any honest or legitimate purpose, and not for the purpose of hindering, delaying, or defrauding his creditors, then the verdict of the jury, as to the issues submitted, must be for the defendant, so far as the sale of said property is concerned.” As a general rule, it is error to submit a question of law to the jury. Fugate v. Carter, 6 Mo. 267, 273; Hickey v. Ryan, 15 Mo. 63, 67; Speak v. Fly & Walker Dry Goods Company, post, p. 122. “Legiti
We take occasion again to say that in our judgment an instruction which merely tells the jury, on the one hand, that a debtor may dispose of his property for an honest purpose, and, on the other hand, that he may not dispose of it for the purpose of hindering, delaying, or defrauding his creditors, does not direct their minds to anything definite upon which to base a just or fair verdict. The jury ought to be specifically directed as to what purposes are honest in a legal sense. This the court did in other instructions, and, so far as this instruction tells them in general terms that a debtor may dispose of his property for any honest purpose, we see no objection to it for which the judgment could be reversed. But where the court goes further and throws the question of the lawfulness of the defendant’s purpose into the scale, and submits that question to the loose
The judgment will be reversed and the cause re-
manded. It is so ordered.