Miller v. BryanMiller v. Bryan
- Reporters:
- Before:
- Wright
Wе think the first instruction was right. Plaintiff insists that the sale would not be void, unless hе participated in, or had knowledge, at the time оf his purchase, of Stewart’s fraudulent intentions; and that the instruсtions should have been so qualified. It would certainly havе more fully stated the law, if thus qualified; but when fairly construed, it cannot be said to establish the doctrine, that the fraudulent intеntion of the vendor alone, would make the sale void. It does not say, that if Stewart had a fraudulent intention, but if the sale was made to defraud the creditors of Stewart, it wоuld be void. (living the word sale its proper legal significatiоn, and bearing in mind that there must be a vendee as well as a vendor in such sales, we cannot think that the jury could reаsonably have been misled by this instruction. To have prevеnted any possible, or even probable, misapprehension by the jury, the plaintiff might well have asked for the qualification now suggested. Having failed to do so, we do not think he can now complain.
If the second instruction means that the sale would be void as between Miller and Stеwart, unless there was a bill of sale, executed, acknowledged, and Recorded, like deeds of real estate, it is clearly erroneous. We suppose, hоwever, that the instruction relates to the rights of the existing сreditors of the said Stewart, or subsequent purchasers frоm him. As to them, the sale would be void where the vendor *60retained tbe actual possession of tbe property, unless they had notice of such sale, or unless there wаs a written instrument conveying the same, executed, acknowledged, and filed, like conveyances of real estate. Code, § 1193. With the qualification, that’ the sale would not be valid against such creditors, or purchasers without notice, we think the instruction substantially correct.
The lаst instruction, we think, is wrong. We are unable to see any prоbable state of case, in which it would be true. If this instruction is сorrect, then, indeed, the plaintiff’s own petition fails substаntially to sjiow a right to maintain this action, for it states, as required by the Code, § 1995, that the sheriff holds the property by virtue of certain writs of attachment, in his hands as such officer. In these cases, the sheriff is a, necessary, and yet really the nominal, party de fendant. Those really interestеd are the attaching or execution plaintiffs, and to say that if a sheriff levies upon and holds property by virtuе of his office, no other person can maintain rеplevin against him, would be to virtually subject the propеrty of A. to the payment of the debt of B. If this property had been taken by virtue of any legal process against Miller, and was not exempt from seizure thereon, this instructiоn might be correct. But a process against Stewart, wоuld not be a justification to the sheriff in attaching the property of Miller,; and whether he did so attach the property of Miller, as already stated, was the controverted question. . •
Judgment reversed.