Gordon v. Ismay

55 Mo. App. 323 | Mo. Ct. App. | 1893

Ellison, J.

Plaintiff brought an attachment suit against defendant in which the attachment writ was levied upon a lot of brick and other personal property as being the property of defendant. Interpleader filed an interplea claiming the property under a chattel mortgage executed to him by the defendant in the attachment securing an indebtedness which defendant was alleged to be owing to him. The issue tried on the interplea was as to the bona fides of the debt secured by this mortgage; plaintiff alleging that the mortgage was made in fraud of creditors, and that, the fraud was known to, and participated in, by the interpleader. The trial was submitted to the court without a jury. All declarations asked by interpleader were given. None were asked by plaintiff. The finding and judgment was for plaintiff.

We are asked by interpleader to reverse this judgment on the ground that there was no evidence whatever to sustain it. A careful examination of the testimony has failed to impress us with interpleader’s view. .The fraud charged here does not necessarily have to be shown by direct testimony. It may be inferred from circumstances shown in evidence. While fraud will not be presumed and must be proven by the party holding the affirmative, yet it is a subject for legitimate inference which may arise from facts disclosed by the case. With this statement it is sufficient to say, without going into a tedious detail of the evidence, that there was evidence in the cause tending to support the finding, and we will affirm the judgment.

All concur.