8 Kan. 480 | Kan. | 1871
This was an action brought by D. A. Millington & Co., to set aside an assignment of properly made by Asa Hairgrove to John H. Murphy for the benefit of Hair-grove’s creditors, on the grounds that the assignment was irregular, illegal, and made for the purpose of defrauding Hairgrove’s creditors, among which were said Millington & Co. The judgment was for the plaintiffs below; and the defendants below, Hairgrove and Murphy, bring the case to this court. They assign in their petition in error fourteen errors, but in their brief they reduce the number to six, as follows: “ lst.-The court below erred in permitting, the plaintiffs to give in evidence on the trial the declarations and statements of Asa Hairgrove, the assignor, made after the execution and delivery of the assignment to the assignee, as proof of the fraudulent intent with which the deed of assignment was made, and evidence tending to invalidate the assignment. 2d.-The court below erred in charging the jury, ‘ That an assent to the assignment means an agreement by the plaintiffs to abide by the assignment with a full knowledge of all the facts.’ 3d.-The court below erred in not allowing Rhinehart’s deposition read in evidence to be taken by the jury on their retiring to consider of their verdict. 4th.-The court below erred in refusing to submit and in not submitting to the jury the question as asked by the defendants below, to-wit: Did Murphy aecejff said assignment with the intent to hinder, delay, or defraud the creditors of Hairgrove, or either of them? 5th.-The court below erred in not granting a new trial on the grounds stated in the defendants’ motion therefor. 6th.-The court below erred in not rendering a judgment in favor of the defendants below on the findings of the jury as asked by the defendants.”
I. "We are referred to certain pages of the record as showing the first error complained of; but not one word of what Hair-grove said or declared is there proved. It is there shown that Hairgrove had money after the assignment was made, but it is shown as a fact by those who saw the money, and not by any
II. The counsel for plaintiffs in error have not referred us to the pages of the record where the other supposed errors occur, and hence we feel under no obligation to consider them. (S\ipreme Court Eules, No. 2.) We have however carefully examined the record, although it is a very lengthy one, containing over one hundred and eighteen pages of legal cap, and think that the rulings of the court below complained of were not erroneous. The instruction complained of was as favorable to the defendants below under the circumstances of this case as they had any right to ask. The assignment was made without consulting the plaintiffs, and before they knew anything about it. If the plaintiffs ever assented to the assignment it was after it was made, without any consideration therefor, and without a full knowledge of all the facts.
III. Where all the evidence is in writing it is generally
IY. After a jury has found a verdict, returned it into court, but before it is announced, as in this case, it is hardly a proper time to ask the court to require the jury to make certain special findings. And in any case (as the law was when this case was tried) whether the court would require such special findings was purely discretionary; (Topeka v. Tuttle, 5 Kas., 312, 323; Gen. Stat., 684, § 286; Comp. Laws, 171, § 287;) and particularly so as this was an equity proceeding in which the parties were not entitled to a jury as a matter of right, and in which the court could send such issues as it chose to the jury. (Gen. Stat., 680, § 267; Comp. Laws, 168, § 275.) But it was not necessary that Murphy should have accepted the assignment with the intent to hinder, delay or defraud the creditors of Ilairgrove, or of any of them, in order to render the assignment void. This question has already been decided in this court. It was decided in the case of Kayser v. Heavenrich, 5 Kas., 324, 340, that “Neither the assignee nor the creditors are purchasers for a valuable consideration, and it is not necessary that notice of the fraud should be brought home to them to render the conveyance void.” This was decided upon the authority of the case of Flanigan v. Lampman, 12 Mich., 58, 61, and Burrill on Assignments, 438,439, and cases there cited. See also Rathbun v. Platner, 18 Barb., 272; Wilson v. Forsyth, 24 Barb., 105, 120. This rule probably applies (but we do not now so decide) only where the fraud of the assignor is proved by facts, or by the declarations of the assignor made prior to or at the time of the assignment. Wo see no sufficient reason for overruling our former decision upon this question.