Mendes v. KyleMendes v. Kyle
- Reporters:
- Before:
- Belknap
*370By the Court,
Belknap, J.:This is au action for the recovery of personal property. The respondent justified the taking, as sheriff of the county of Eureka, under certain writs of attachment issued in . actions brought against one Prietas. The plaintiff claimed to be the owner of thе property by purchase from Gerome, who was the vendеe of Prietas. Defendant contended that the sale from Prietas to Gerome was fraudulent as against the attaching crеditors, and as plaintiff purchased pending the attachment hе was not a bona fide purchaser without notice. The case turned upon the bonafides of the sale from Prietas to Gerome.
Among other instructions the court gave the following:
“ The jury are instructed that in arriving at their verdict as to whether the sale from Prietas to Gerome was fraudulent or not, thеy are to take into consideration all the facts and circumstances surrounding the alleged. sale. If the jury shall find from the testimоny that the price alleged to have been paid for thе property was much less than it was worth, that is a fact tending to prove that the sale was fraudulent as to the creditors of Priеtas, and the jury, are at liberty to find that the sale was fraudulent, and find fоr the defendant.
“If the jury shall find from the testimony that there was no immediаte delivery of the property after the alleged salе, that is a fact tending to prove that the sale was fraudulent as to the creditors óf Prietas, and the jury are at liberty to find that the sаle was fraudulent and find for defendant.
“If the jury shall find- from the testimony that Priеtas, after the alleged sale, continued to use the prоperty as he had used it before, that is a fact tending to prоve that the sale was fraudulent as to the creditors of Prietas, and’ the jury are at liberty to find that the sale was fraudulent, and find for the defendant.
“If the jury shall find from the testimony that Gerome, after the alleged sale, concealed the fact until Prietas’ failurе, that is a fact tending to prove that the alleged sale wаs fraudulent as to Prietas’ creditors, and the jury are at lib*371erty to find thаt tbe sale was fraudulent, and find for tbe defendant.”
Tbe instruction is correct in stating that inadequacy of consideration, conсealment of tbe sale, and tbe vendor’s applying tbe prоperty to tbe same use after as before tbe sale, were facts tending to prove fraud. Tbe instruction was also correct in directing, tbe jury to take into consideration all of tbe facts and circumstances of tbe sale, in determining whether it was fraudulent. But the repetition of tbe words, “ and tbe jury are at liberty tо find that tbe sale was fraudulent, and find for tbe defendant,” following the sеparate statement of each fact tending to prоve fraud, may have misled tbe jury. From it they may have understood that if аny of tbe facts mentioned as tending to prove fraud existed, thеy would be justified in finding a verdict for tbe defendant, independently of tbе other facts of tbe case. Tbe constant repetitiоn of tbe words last quoted was calculated to make‘this impression. Tbe proper construction of tbe charge is, that if аny oue of tbe badges of fraud mentioned be established, such fact, in connection with other circumstances of a fraudulеnt intent on tbe part of tbe vendor, is sufficient evidence to support a finding of fraud. But it-may have received the other construction, and thereby prejudiced tbe rights of appellant. o
We find no other error in tbe record.
Judgment reversed.