58 Kan. 250 | Kan. | 1897
Though the findings of the jury are challenged as unsupported by the testimony, it is unnecessary to consider any other assignments of error than those i*elating to instructions given and refused. There were many circumstances given in evidence, tending to sustain the defendant’s claim that the sale of the stock of hardware by W. K. Ryland to M. L.' Ryland was fraudulent. It therefore became the duty of the court to instruct the jury with reference to the facts disclosed by the testimony on the part of the defendant. Special instructions were submitted by counsel for both parties. The court appears to have selected from those submitted on both sides such as were deemed correct statements of the law, and to have made up from them the charge given to the jury. It contains twenty-seven paragraphs, covering thirteen pages of the record. The first paragraph contains a fair statement of the issue. The second is to the effect that the plaintiff must show, by a preponderance of the evidence, that there was a bona fide indebtedness from W. K. Ryland to M. L. Ryland for the amount claimed, and that the purchase was absolute, and without any intent on the part of the plaintiff to assist in defrauding the creditors of W. K. Ryland. The third instruction is as follows :
“You are instructed that it is lawful for a debtor to prefer a particular creditor ; that, for the purpose of paying such creditor, the debtor may turn over all his property at a fair valuation, and this is not a fraud on other creditors, although the known effect of it*257 may be to hinder and delay other creditors in the collection of their just debts.”
■ In the following instructions, from the fourth to the nineteenth inclusive, the propositions contained in the second and third are repeated many times, with the further propositions, in the sixth, eleventh and nineteenth, that the sale should be made for a fair value. In these instructions are included, in various forms, the propositions : That a sale of more property than was necessary to satisfy the debt would not vitiate the transaction if the excess was reasonably necessary for the purpose of satisfying the actual debt; that the agreement to pay the debt of Tom Hill would not invalidate the plaintiff’s purchase; that the law favors the vigilant creditor; that M. L. Ryland had a right to procure a payment of his debt .to the exclusion of other creditors ; that he might take more goods than was actually necessary to pay the debt, if he honestly believed he was taking no more than a sufficient amount; that he had a right to proceed hurriedly and secretly; that no amount of bad faith on the part of W. K. Ryland toward his other creditors would invalidate the plaintiff’s title, if he himself acted in good faith and bought the goods for a fair value ; that in order to find that W. K. Ryland acted fraudulently in disposing of his property, the jury must believe that he intended to retain some interest in the property sold, .or to obtain some pecuniary advantage by reason of the sale; that W. K. Ryland had a right to apply his property to the payment of debts as he chose, and to give preferences among his creditors ; that, if transferred for the sole purpose of paying his debts, Aultman, Miller & Co. had no right to attach the stock; that the transfer of his own homestead to his wife was not a fraud, and could not be taken into consideration in the case for