97 Mo. 413 | Mo. | 1888
A. Spiro made a voluntary assignment of his property to F. Levy for the benefit of his creditors. The deed of assignment was executed and recorded on the eighteenth of November, 1882. On the twentieth of the same month, Adler and others, composing the firm of Adler & Co., sued Spiro in attachment, and levied upon the assigned property then in possession of the assignee. The assignee made claim for the property and thereupon the defendants in this suit gave the sheriff an indemnifying bond. 2 R. S. 1879, p. 1555. This is a suit by the assignee upon that bond to recover the value of the property taken from him. Defendants deny ownership of the property in the plaintiff, and tender the further issue that Spiro made the assignment with intent to hinder, delay and defraud his creditors.
1. Defendants objected to the deed of assignment when offered in evidence by the plaintiff, on the ground that the affidavit attached thereto was not in conformity with the statutes. Section 362, Revised Statutes, makes it the duty of the assignor to make and file with the deed of assignment, a verified statement, “ setting forth the general nature and full value of the estate and effects assigned.” The same section makes it the duty of the
2. Spiro, being called as a witness by the defendants, testified, in substance, that he found he could not go on with his business ; that he feared he would be closed up by attachments ; that he went to his lawyer to make an assignment, and while there sent for Levy; that he had had no previous conversation with Levy about an assignment; that Levy first refused, and then consented, to act as assignee, and that the deed was then made, recorded, ' and the property turned over to Levy. His evidence shows that an-unsuccessful effort had been made to compromise his debts. It may be here stated that the assignee was examined at length, by the defendants. During the examination of Spiro, numerous objections were made, and by the court sustained, to questions asked by defendants. They then
The amount of the debt due to Adler & Company is admitted by the pleadings, so that there was no occasion to offer proof on that subject. Since considerable latitude is allowed in the examination of witnesses on questions of fraud, and the witness was a party to the alleged fraudulent transaction, the court might well have allowed a more extended examination. But it does not follow that the judgment must be reversed. There is no claim that any creditor of Spiro had anything to do with making.the assignment. Before it can be avoided, it must appear that Levy was, in some way, a party to the fraud. Although the assignor may have made the assignment with intent to hinder, dejay, or defraud his creditors, still, unless the assignee knew of, or participated in the fraudulent purpose, the fraudulent intent of the assignor will not avoid the deed. Crow v. Beardsley, 68 Mo. 435, and cases cited. Moreover, this is an assignment for the benefit of all of the creditors of the assignor in the proportion of their respective claims, as an assignment must be under our present statute. It includes all of the property of the assignor, the estate is to be administered under the statute and the directions of the circuit court. Much that is said in the books as to what will render an assignment fraudulent, where preferences are made and allowed, and the estate is to be managed under the powers in the deed, dictated by the assignor, can have
3. Although the verdict 'and judgment are in due form, under Revised Statutes, section 570, it is argued that the motion in arrest of judgment should have been sustained, because the petition prays for a judgment for damages sustained only and not for the penalty of the bond sued upon. The petition sets out the bond and assigns the breach, and regularly the prayer should
The judgment of the circuit court is affirmed.