Evans v. Morgan, Robertson & Co.

69 Miss. 328 | Miss. | 1891

Cooper, J.,

delivered the opinion of the court.

The appellees exhibited their bill in the chancery court of Lowndes county, against T. T. Evans and M. A. J. Evans, for the purpose of subjecting certain goods, which they aver had been fraudulently sold by T. T. Evans to M. A. J. Evans, to the payment of their demands against T. T. Evans.

The bill alleges that T. T. Evaus was, prior to the 21st day of December, 1890, engaged in business as a merchant, and contracted debts to the complainants for goods sold to him, a large part of which debts were contracted a short time before said 21st day of December, and the goods- were, to a great part, in his stock on said day; that said T. T. Evans though apparently full grown and of age, was in truth a minor, but that fact was not known to complainants; that on said'21st day of December, 1890, the said T. T. Evans had sold his entire stock of goods to his father, M. A. J. Evans, professedly in payment of a debt, but in truth for the purpose of defrauding his creditors; that-he owed his father no debt, or, if any thing was really due to him, the sum was insignificant, and that the claim of the father, for payment of which the conveyance was made, was mostly if not entirely simulated; that upon learning of the pretended sale, complainants had sued out attachments at law against T. T. Evans and levied upon the goods; that the defendant, T. T. Evans, had pleaded his minority in the suits' at law, and complainants, being satisfied that upon the trial at law said plea would be maintained, had attempted to discover the goods which they had respectively sold to the minor, with the purpose of making claim to the specific articles, but that it was found impossible to distinguish the goods, for the reason that they had been so intermingled by T. T. Evans as to preclude identification; that the goods had been sold by the sheriff as perishable property, and the proceeds yet remain in his hands.

The complainants, by their bill, waive all right to a personal judgment or decree against T. T. Evans, and pray that the sale to M. A. J. Evans be declared fraudulent, and that the court will take charge of the fund realized by the sheriff’s sale, and apply it to the payment of their demauds.

The defendants demurred to the bill, and, the demurrer having been overruled, they answered, setting up the bona fides of the sale to M. A. J. Evans and denying the right of complainants to relief. T. T. Evans pleaded and relied upon his infancy, and denied that the stock sold by him to his co-defendant consisted solely of goods bought of complainants, but averred that a part of said stock had been bought from complainants and a part from other persons. On final hearing the chancellor decreed in favor of complainants, and from that decree the defendants appeal.

We approve the decree, both on the facts and the law.

It is manifest from the evidence that the debt to the father was grossly exaggerated by the parties for the purpose of covering the value of the entire stock of the son, and of enabling him to withdraw it from subjection by his creditors. It -may be that some small sum was really due to the father, but if so, it was used as a mere foundation on which to build a simulated and exaggerated indebtedness, to be used as a device to defraud the real creditors of the son.

Upon the fact of fraud in the sale being found, no other legal or equitable result could have been reached than that decreed by the court. Infancy, as has been uniformly said by the courts, is a shield for protection and not a sword for attack. Under it the defendant may escape personal liability upon his contracts, but he cannot repudiate the contract and retain as his own its fruits. When property is bought by an infant upon credit, and, being sued for the price, he pleads infancy, the seller may recover at law the property, the title being revested in him by the result of the suit for the price. Badger v. Phinney, 15 Mass., 359 (8 Am. Dec., 105 and notes); Brantly v. Wolfe, 60 Miss., 420; Henry v. Rott, 33 N. Y., 526. A fortiori, is the principle applicable in a court of equity. Kitchen v. Lee, 11 Paige, 107; Lynde v. Budd, 2 Paige (Ch.), 191.

It is insisted for the appellants that the stock of goods sold by the infant, and seized by the officer under the writs of attachment, did not consist solely of the goods sold by the complainants, but was composed partly of those goods and partly of other goods bought from other persons; and it is urged that in no event should any goods have been subjected to complainants’ debts, other than those sold by them .to the infant.

It is not necessary to decide whether, if identification and separation of the goods could have been made, it should have been directed and the complainants confined to the goods sold by them, or whether the chancellor, even under such circumstances, might not have treated the goods other than those sold by complainants as substitutes for the goods sold by them, and, dealing with the entire stock as a fund for the payment of creditors, have made the decree as entered. Upon another principle the decree was correct. It is certain that the goods bought from complainants have been intermingled with other goods, so that they cannot be identified or separated. This was done by the defendants and not by the complainants, and, under such circumstances, the complainants were entitled to subject to their debts the whole mass.

The decree is affirmed,.