51 Kan. 547 | Kan. | 1893
The opinion of the court was delivered by
This was an action brought by H. H. Taylor to recover from Charles Schram, sheriff' of Butler county, the possession of 1,210 head of sheep and 300 lambs, all of the alleged value of $5,065. The sheep were seized by the sheriff as the property of J. C. Taylor, the father of the plaintiff below, to satisfy a judgment against the father. It appears that, after J. C. Taylor had become financially embarrassed, he sold, or claimed to sell and transfer, the sheep to his son, for a consideration of about $2,400, which was in the form of an incumbrance upon the sheep; and it is stated that the agreement was, that the son should pay and discharge the debt and incumbrance which stood against the sheep. When the sheep had been turned over to the son, the father had little, if any, property remaining to satisfy a large indebtedness that existed against him. The cause was tried with a jury, and some of the testimony submitted tended to show that the father was indebted to the son, and the sheep were given to him in part payment of the indebtedness. It was claimed that the father owed the son $225 for work and labor; a one-fifth interest in a payment of $500 which had been made by the mother of J. C. Taylor to his five children, which, with interest for 10 years, amounted to about $200;
On the other hand, H. H. Taylor contends that the transfer was bona fide; that there was a complete and continued change of possession from the time of sale, and that the consideration paid by him for the sheep was the full value of the same. It is shown that he paid $1,100 of the indebtedness existing against the sheep and gave his personal note and mortgage to secure the balance that was due upon them. H. H. Taylor now contends that he tried the case upon the theory that his father had paid to him what was due prior to the purchase of the sheep, and that the sole consideration of the purchase was the assumption and agreement to pay the amount of the mortgage indebtedness which was then a lien upon them. The plaintiff in error tried the case upon the theory that H. H. Taylor pretended to be a creditor of his father, and had taken the sheep on his pretended claim of indebtedness, but that the value of the sheep greatly exceeded the amount of the indebtedness and incumbrance, and the transfer was in bad faith, and that the value of the sheep did not bear a just proportion to the amount of the indebtedness.
There was testimony that justified the court in instructing upon both theories, and the principal error complained of is an instruction given to the jury which reads as follows:
“That when a person purchases goods with a knowledge that his vendor intends by the sale to defraud his creditors,*552 or hinder or delay them in the collection of their debts, such purchaser will not be affected if he takes the goods in good iaith in payment of his honest debt. . A creditor violates no rule of law when he takes payment of his debt, though he knows that the other creditors are thereby deprived of all means of obtaining satisfaction of their own equally meritorious claims.”
i Fraudulent ' conveyancebona fide debt. “That where the conveyance to a creditor having a bona fide claim is in excess of the actual debt, or is given to favor the .debtor, or merely to cover up the property from other creditors, or to prevent a fair sale of the property, then the transaction, sale or conveyance so fraudulently made to the creditor having the honest debt is vo^ a{. jeaS£ ag t0 the creditors not preferred.” (See, also, Lewis v. Hughs, 49 Kas. 23; Dodson v. Cooper, 50 id. 680.)
Counsel for Taylor recognize the same principle, where they state in their brief that
“A creditor has the right to purchase, for a man always has the right to protect himself; and the creditor has a right to purchase property sufficient to pay his debt, provided his debt is just and he only purchases enough property to pay his debt, and he purchases at a fair value.”
In this case, it was claimed that the value of the sheep greatly exceeded the incumbrances against them, and there was a dispute in regard to the amount of the mortgages which constituted liens upon the sheep. On one side, it was claimed that the mortgages amounted to about $2,300, and that the sheep were not, at the time of the transfer, worth more than $2 per head. The plaintiff in error insists, however, that the liens upon the sheep did not amount to $2,000, and that the sheep were actually worth nearly double the amount of the incumbrances. Whether the sheep, which constituted about all the property of the insolvent debtor) were taken at a fair value, was a material question in the case, and a proper instruction with regard to it was important. If it had been specially found that the amount of the liens and the value of the sheep were substantially the same, it might be said that no prejudice had resulted from the misdirection of the jury; but no special findings were made, and we are unable to find anything in the record to cure the vice of the instruction. In the general verdict returned in favor of Taylor, it is found that the sheep were of the value of
The sufficiency of the evidence is presented by a demurrer wjiich was filed, but we cannot say that there was error in overruling it. If the case had been properly submitted to the jury, with a result similar to what was obtained, we would feel compelled to say that all questions respecting the honesty of the debt, the fairness of the price and the good faith of Taylor had been settled by the jury, and that there was testimony enough to sustain their verdict.
None of the other questions suggested by plaintiff in error are deemed to be material- but for the error-already referred to the judgment of the district court will be reversed, and the cause remanded for another trial.