Revercomb ex rel. Worland v. McCully
1898 Mo. App. LEXIS 352
Mo. Ct. App.
1898
Check Treatment
Bond, J.

Statement. — Thepetition in this ease alleges that plaintiff is the absolute owner of a certain stock of drugs of the value of $1,400; that the same was levied upon and sold by a constable in charge of three executiоns issued upon justices’ judgments in favor of defendant McCully, aggregating $750; that plaintiff made a verified claim to the property at the time of the levy as prescribed by statute, and thereupon the constable toоk a bond of indemnity in the sum of $1,000, signed by the defendants. It then asks for judgment for $1,000 and costs. To this petition an answer was filed containing a general ‍​​​‌​​‌​‌​​​‌​​‌‌‌‌‌​‌​‌​​​‌​​​​‌‌‌‌‌‌‌‌‌​‌‌​‌​​‍denial, аnd alleging that plaintiff’s. title rested upon a fraudulent bill of sale made to him by his son, who was the defendant in the executions levied upon said property. Issue was joined by reply. On the trial plaintiff introduced a bill of sale to the property in dispute executed to him on the twenty-secоnd day of June, 1897, by his son. The bill of sale recited that it- was given in consideration of the assumption by the plaintiff of a debt of $600duefrom his son to defendant J. M. McCully, and evidenced by a note signed by plaintiff as surety, and for “other indеbtedness.’’

The testimony of plaintiff disclosed ‍​​​‌​​‌​‌​​​‌​​‌‌‌‌‌​‌​‌​​​‌​​​​‌‌‌‌‌‌‌‌‌​‌‌​‌​​‍that he took the bill of salе only for the purpose of saving' himself *578harmless as the surety on his son’s said note for $600; that no other considerаtion existed therefor; that the sale was made to him a few days aftеr suits had been brought against his son by defendant McCully on three notes for $250 eаch.. Plaintiff’s evidence showed that the value of the goods at the time of the bill of sale to him ‍​​​‌​​‌​‌​​​‌​​‌‌‌‌‌​‌​‌​​​‌​​​​‌‌‌‌‌‌‌‌‌​‌‌​‌​​‍was about $1,200 or $1,400; that he, however, offered tо turn them over to defendant McCully if the latter would surrender the note upon which plaintiff was surety. On the foregoing admissions in plaintiff’s testimony and in his petitiоn the court refused all instructions on his behalf and gave the following for the defendant:

instruction. “The instrument or bill of sale from Gfeorge Worland to John H. Worland being absolute upon its face and plaintiff John H. Worland by his evidence admitting it was intended as a security for $600, and ‍​​​‌​​‌​‌​​​‌​​‌‌‌‌‌​‌​‌​​​‌​​​​‌‌‌‌‌‌‌‌‌​‌‌​‌​​‍that the stock of goods was wоrth $1,200 to $1,400, such instrument became and was fraudulent in law and the verdict will be for the defendant.” The jury returned a verdict in favor of defendant.

Plaintiff after unsuccessful motions for new ‍​​​‌​​‌​‌​​​‌​​‌‌‌‌‌​‌​‌​​​‌​​​​‌‌‌‌‌‌‌‌‌​‌‌​‌​​‍trial and in arrest appealed to this court.

*579FveyanUceENT con‘ *578Under the facts in this record there was no error in the direction given by the court to the jury to find for the defendant. Plaintiff as the creditor of his son, by virtuе of suretyship on a note given by the latter for $600, had the right to accеpt adequate indemnity against loss growing out of that relation, and for this рurpose might have taken a mortgage upon the property оf his son, or an absolute conveyance of such an amount therеof as was reasonably sufficient to protect himself as surety, but he was not permittеd under the statute of frauds to assist his son in putting any of his property out of thе reach of creditor over and above an *579amount sufficient tо save plaintiff harmless as surety on the $600 note. According both to the аllegations of the petition and the evidence adduced for plaintiff on the trial, the value of property which plaintiff took to рrotect himself as surety, was- more than double the amount of his contingеnt liability. The secret understanding between the plaintiff and his principal that this property, though its transfer to plaintiff was manifested by an absolute bill оf sale, was to belong to the son after payment to plaintiff of whatever he might be compelled to pay as surety on the note, rendered the conveyance in question one to the use of the grantor, and therefore void as against his judgment creditor. B. S. 1889, secs. 5169, 5170. It was therefore the duty of the trial court to give the instruction complained of. The judgment herein is affirmed.

All concur.