45 Iowa 681 | Iowa | 1877
Upon the question as to the fraudulent character of the sale the court instructed the jury as follows:
This instruction requires that, in order to justify a finding that the sale was fraudulent, it must not only be shown that plaintiff knew of Leake’s fraudulent intent, or had such knowledge as would have put a man of ordinary prudence upon inquiry, but that he participated in such intent; that is, that he also intended by his purchase to hinder, delay and defraud Leake’s creditors.
A fraudulent intent upon the part of the purchaser is not necessary to be established to defeat the sale. It is sufficient if it be shown that he knew of the fraudulent intent of the seller, or had notice of such facts as would have put a man of ordinary prudence upon inquiry, which inquiry, made with ordi
We find nothing in the instructions to cure the error in that above set forth. It is true that there are some expressions which may be construed as meaning that actual participation in the fraudulent intent upon the part of the purchaser is not necessary, but the most that can be claimed for them is that' they are impliedly contradictory of that now under consideration.
It is insisted by counsel for appellants that the delivery of the deed, after the commencement of this suit, was in fraud of the rights of Leake’s creditors, and that at most Jones can only claim a lien on the goods to the extent of the $150 which he paid before notice, and that his title instead of being absolute is limited.
Whether under such a state of facts the defendants should have garnished Jones before the delivery of the deed, or whether Jones can now be deprived of the benefit of his purchase, conceding that he had no notice of the alleged fraud until-after title passed to him by taking possession and payment of part of the purchase money, we do not now determine, because no such question seems to have been presented in the court below. The instructions asked by defendants upon this feature of the case, which were refused by the court, are to the effect that if Jones or his agents had notice of the fraudulent design of Leake after taking possession of the property and payment of part of the purchase money, and before the delivery of the deed, this would preclude a recovery of the property by Jones in this action. If we were to adopt the appellant’s theory as to the rights of the parties under this
Eor the error first, above discussed the judgment will be reversed and the cause remanded for a new trial.
Reversed.