State ex rel. Boswell v. Rosenfeld, 35 Mo. 472

State ex rel. Boswell v. Rosenfeld

35 Mo. 472 | Mo. | 1865

Bay, Judge,

delivered the opinion of the court.

It is sought to reverse the judgment in this case upon two grounds: 1. That the court erred in the instructions given to the jury; and, 2. That the court erred in excluding so much of the testimony of Frederick Frisbee as was based upon information derived from the books of White.

In the case of the State, to use of Hayden, v. Smith, 31 *474Mo. 566, we held “that under our statute relating to fraudulent conveyances, continued possession in the vendor does not of itself render the sale void, but only becomes conclusive evidence of fraud in the absence of testimony to satisfy the jury that the same was made in good faith, and without any intent to defraud creditors or subsequent purchasers; in other words, if the party attacking the validity of the sale shows possession in the vendor, the statute presumes that the transaction is fraudulent, and the burden of proving the contrary is placed upon the vendor, or party seeking to maintain the sale; and if he fails to satisfy the jury that it was a fair and bona fide transaction, and made in good faith and without any intent to defraud, then the statute makes the possession in the vendor conclusive evidence of fraud.”

This was also the ruling of the court in Kuykendall to the use, &c., v. McDonald, 15 Mo. 416. Judge Scott, who delivered the opinion of the court, said (referring to the question of fraud), “In determining this question, the jury should not be satisfied with the mere absence of direct evidence of a fraudulent intent in connection with proof of a valuable consideration ; they should be satisfied that there was some good and sufficient reason for leaving the property in the possession of the vendor.”

The instructions given by the court below, in this case under consideration, conform to the views expressed in the above recited cases, and are therefore unobjectionable.

We are also of the opinion that the second point is not well taken. The witness was called upon to testify to the state of accounts between'the parties, and he said he had no knowledge thereof except such as he derived from entries in the books of White. The court very properly refused to permit him to give evidence of such entries. The books were the best evidence of what they contained. It was nót attempted to account for their absence, nor was any foundation laid for the introduction of secondary evidence.

Judge Dryden concurring,

the judgment of the court below is affirmed.