17 Mo. App. 549 | Mo. Ct. App. | 1885
Opinion by
I.
The interpleader complains of the action of the trial court in permitting plaintiff to show by the sheriff, Wilson, that the interpleader bought a part of Golden-burg’s household goods, which were sold at public auction.
II.
The interpleader complains of the action of the trial court in permitting plaintiff, to introduce in evidence statements made by Goldenburg to Allen and others, touching Ms responsibility while purchasing the goods in suit, and in permitting plaintiff to introduce in evidence the depositions of certain named witnesses, and in refusing to give instruction No. 1, asked by the inter-pleader, and in giving instruction No. 12 of the court’s own motion.
One position of the interpleader as to the statements made by Goldenburg, not in the presence of the inter-pleader, is, that those statements might have a tendency to show that Goldenburg intended to cheat and defraud those from whom he purchased the goods in August, but that they could have no tendency to show a fraudulent intent on the part of Goldenburg in making the sale to Franke in November. We think that any evidence tending to show that Goldenburg purchased certain goods in August, with the intent then formed in his mind to cheat and defraud those from whom he so purchased them, naturally and necessarily has a tendency, in connection with proof that he had not paid for the goods, to show that Goldenburg’s intent in making the sale of the same goods in November was to carry out and complete the fraudulent intent and design formed when the purchase of the goods was made in August, and that such evidence was admissible in this case. Another position taken by the interpleader as to those statements made by Golden-burg is, that, as to the controversy between plaintiff and the interpleader, the defendant Goldenburg is a stranger, and that, on general principles, those statements cannot be evidence for or against either party to this controversy. Although Goldenburg is not a party to this controversy, the intent with which he sold the goods to
We think that instruction No. 12, given by the court of its own motion with sufficient clearness, informed the jury for what purposes they should, and for what purposes they should not consider those statements of Goldenburg. That instruction stated to the jury that those statements were evidence only for the purpose of showing Goldenburg’s intent in making the sale of the goods to Franke.
That this is the meaning of the 1st clause of that instruction is clear and certain, but in the 2nd clause the court directs as follows, “and the jury will not consider the same against Frarilce, unless they believe, etc.”
And on account of this 2nd clause the interpleader makes his chief objection against this instruction, contending that it must mean, either, that the jury should consider those statements of Goldenburg in connection with all the other evidence in the case, in determining the intent of Goldenburg in making the sale to Franke and the knowledge of Franlce of that intent at the time of the sale; or that the jury should determine from the other evidence alone, excluding those statements, Golden-burg’s intent and Franke’s knowledge of it, and that if they found Goldenburg’s intent fraudulent, and that Franke knew it at the time of the sale, then they might consider the statements against Franke; in which latter case the statements as evidence would be useless, the jury having already decided the case before having the right to consider them.
But the instruction as a whole is not open to the objection made upon the 2nd clause of it. The language of the 2nd clause is peculiar in directing that “the jury will not consider the same as against Franke unless they believe,” etc.
■ As to the depositions, on account of whose introduction In evidence the interpleader objects, it is true that they May not throw much light upon the issue in this case ; still they do throw some light upon it. They tend to show a state of facts and circumstances, from which, had it existed, the jury might have reasonably inferred that in August and September, 1881, Goldenburg purchased the goods in suit with the intent to cheat and defraud those from whom he so purchased them, and the depositions, in that way, in connection with the other evidence in the case and the proof that Goldenburg never paid for any of the goods, tend to show that, in making the sale to Franke, he intended to carry out that original design. For these reasons the depositions, in our opinion, are competent evidence.
To illustrate, take the deposition of Henry Solomon as an example of the depositions. In that deposition Solomon states that Goldenburg first did business with Ms house in March, 1880; that Goldenburg bought a few goods in March, 1880, in amount from $40 to $400; that from March, 1880, until September, 1881, Goldenburg’s
That evidence throws light upon the character of the intent had by Goldenburg at the time of making the purchases in August and September, which intent was material and proper for the jury’s consideration in determining the character of the intent had by Golden-burg in selling to Franke the goods,, thus purchased and still unpaid for, in November.
III.
The interpleader also complains of the action of the trial court in refusing to give instructions numbered 2, 3 and 10, asked by him ; and in giving said instruction numbered 10 as modified by the court..
It is settled law that the insolvency of a debtor does not deprive the debtor of the right to dispose of his property. He can still dispose of his property in any way he may think proper, provided he does so “for an honest purpose and not to withdraw it from process for his just debts.” — Dougherty v. Cooper, 77 Mo. 581. And “the power of a debtor to sell implies the corresponding right
It is equally well settled that a debtor has the right to prefer a particular creditor over his other creditors, even if by so doing he should hinder and delay his other creditors. — Shelley v. Boothe, 73 Mo. 77. And “it is no-objection to an assignment made to pay a bona fide debt that the intent of the parties was to postpone or hinder other creditors.” — Lane v. Ewing, 31 Mo. 75. “ So long as the property of a debtor remains in his hands unshackled by liens and incumbrances, his power over it is absolute, and he can, in the absence of any statute!, dispose of it by the way of satisfaction to his creditors as well as by sale. A debtor therefore has discretion within the limits of fraud.” — Bump on Fraudulent Conveyances, p. 180. .An insolvent debtor may sell his property, then, if he do not so with the intent to hinder, delay, or defraud his creditors ; another may buy the property; and an insolvent debtor can prefer one creditor over his other creditors. It necessarily follows that an insolvent debtor can sell all or any part of his property for the purpose of applying the proceeds of the sale to the payment of the honest debts of any particular creditor; that such a purpose is an honest purpose; and that another with knowledge of such purpose on the debtor’s part may legally purchase the latter’s property.
In Avery v. Estes (18 Kas. 507), the following instruction was approved: “If the jury believe from the evidence that Harris sold the property in question in good faith to pay any particular creditor of his, to the exclusion of others, without any intention to defraud, but simply to prefer one creditor to another, although the plaintiff may have had full knowledge of such intent on the part of Harris, it would not vitiate the purchase of Estes by plaintiff.”
In Bedill v. Chase (34 N. Y. 387-388), the court says:
In Ruhl v. Phillips et al. (48 N. Y. 31), it is said : “ This object, although known to Phillips at the time of his purchase, did not render it fraudulent as against the plaintiff or any of his creditors who were not to be so preferred. A debtor, notwithstanding his insolvency, is allowed to make such preference if bona fide, and a sale for that purpose is not invalid.”
In Gregor et al. v. Harrington et al. (33 Vt. 245), the court said : “The doctrine has ever been recognized in this state that a debtor may pay or secure one creditor to the exclusion of another. * * * In this case, if the principal debtor had transferred the property itself to the same persons to whom he transferred the notes he took for it and for the same purpose, no person would claim that he had not a perfect legal right to do so; or if he had sold the property and taken the money for it and had applied the money in the same manner, it would not have been fraudulent. The purpose was not to keep his property away from his creditors, but to pay to his creditors, he exercising his legal right to prefer such as he chose. Fraud does not consist in transferring property with the view to prefer one creditor to another, but in transferring property with the intent .to prefer one’s self to all his creditors.”
Whether or not an intent is fraudulent is a question of law, and “it is the province of the court to instruct the
For this error the judgment of the circuit court will be reversed and the cause remanded.
IV.
The interpleader contends that the motion in arrest of judgment, made by him, should have been sustained, for the reason that the answer of plaintiff to the interplea .fails to allege that the debt sued for in the attachment suit was existing at the time of the alleged fraudulent sale by Goldenburg to Franke. The petition in the attachment suit alleges that the debt of $1,200 sued for is due for goods furnished by plaintiff to Goldenburg in Aug., 1881. The answer to the interplea avers that the amount of $1,200 due plaintiff is for the purchase price of the goods and merchandise attached and levied upon by the sheriff in this cause. The answer further states that while Goldenburg was so indebted to the plaintiff, etc., for the goods and merchandise levied upon and seized in this cause, etc., the said fraudulent sale was made. We think that the answer clearly states and shows that the debt due plaintiff, therein alleged, was existing at the time of the alleged fraudulent sale, and that the motion in arrest was properly overruled.
The judgment of the circuit court for the reason given above, is reversed and the cause remanded-;