275 Mo. 41 | Mo. | 1918
The Delta Lumber Company further answered that prior to the service of the garnishment, to-wit, about April 1, 1910, it delivered $350,000 of its first mortgage five per cent bonds, payable to bearer, to the Haekley & Hume Company, Ltd., all of said bonds maturing from March 1, 1920, to March 1, 1927, bearing interest coupons payable semi-annually, and that on the same date (April 1, 1910) it gave to defendant twenty-four negotiable promissory notes aggregating $1,550,000, maturing serially each* successive six months thereafter, and bearing five per cent interest payable semi-anually.
This garnishee also averred, on information and belief, that none of these first mortgage bonds, nor interest notes, was, at the time of the garnishment, either owned or held by the defendant, but had been previously assigned, delivered and transferred, specifying the name of the transferees.
The Central Coal & Coke Company answered similarly, with thé'further averment that it had guaranteed the payment of the promissory notes executed by the Delta Lumber Company.
■ Interpleas were filed by the' persons named as interpleaders, setting up title to the respective portions of the notes and bonds of the Delta' Lumber Company claimed by such interpleaders.
Plaintiffs denied the answers of the garnishees and made answer to the claims set up by the inter-pleaders, in both of which pleadings plaintiffs averred that if there had been any assignment of the notes and bonds given to the defendants by the Delta Lumber Company, it was voluntary and fraudulent.
After a judgment in accordance and reserving jurisdiction, the garnishees and interpleaders filed motions for a new trial, which were sustained, in a written memorandum by the learned trial judge, on the theory that upon the undisputed facts, which were set out in the pleadings of the garnishees and interpleaders, no case was made for a jury.
It was undisputed that at the time of the declaration and distribution of the stockholders’ dividend, on June 13, 1910, the managing officers who ordered the same had no knowledge of the claim of plaintiffs, nor was there any evidence of intention on the part of any other officers in any way to hinder, delay or defraud the plaintiffs, the first intimation of whose claim against the defendant was contained in a letter dated August 10, 1910, addressed to “Messrs. Hackley & Hume, Muskegon, Michigan,” as follows:
“I am informed that you have consummated the sale of the timber land in Vernon Parish, Louisiana, to the Central Coal & Coke Company, in regard to which I began negotiations on your behalf in July, 1907. Our commission for making the sale . became due upon its consummation and we hope it is convenient for you to settle with us now.
“Your truly,
D. C. Saunders.’’
In these circumstances the only possible theory upon which such' indebtedness could be attached is, that it existed when the debtors were garnished and that the previous transfers thereof by the defendant were voidable against plaintiffs, as attaching creditors, because voluntary and therefore presumptively fraudulent in law as to attaching or judgment creditors. [Clark v. Thias, 173 Mo. 1. c. 652.]
Even if it be conceded for the argument that no corporation can turn over its assets to its shareholders, without other consideration than that status, to the prejudice of the claims of its attaching and judgment creditors, still that principal has no application where, as here, the undisputed fact is that the defendant corporation retained other assets at the time of the trial, of the value .of two millions of dollars in the form of other real estate owned by it in Louisiana which was subject to no liens or charges and amply sufficient to satisfy plaintiffs’ demand and that defendant owed nothing, unless the amount sued for in the principal case shall be established as a debt against it. [Coleman v. Hagey, 252 Mo. 1. c. 135; Welch v. Mann, 193 Mo. 304, 324; 12 R. C. L. p. 593.]
If, therefore, the distribution by defendant of a portion of its assets arising from a sale of a part of its Louisiana lands was, as to plaintiffs, voluntary, it was not fraudulent in law or voidable under the facts in this record, since the proof was uncontroverted that defendant retained the title to similar lands more than sufficient to pay all the claims of plaintiffs. The burden of proving that fact rested upon and was discharged by the interpleaders (Clark v. Thias, 173 Mo. 1. c. 652.), and hence neither their title nor the indebted
The ruling of the learned trial judge in sustaining the issue joined under the writs of garnishment between plaintiffs and the garnishees and interpleaders, was correct and is affirmed. It is so ordered. All concur.