State ex rel. Mastin v. McBride

105 Mo. 265 | Mo. | 1891

Sherwood, P. J.

Action on the bond of McBride, the sheriff of Jasper county, the alleged breach being the seizure and sale of a quantity of zinc ore under an execution in favor of N. M. Barney and against the North Center Creek Mining & Smelting Company. The ore thus sold was mined on a part of the land sold under the Wahl deed of trust, and after the sale thereunder.

This cause was in this court on a former occasion (81 Mo. 349), and it was then held that there was evidence sufficient to go to the jury that the mining lands, etc., at the instance of the company were sold at the trustee’s sale and purchased by relator for the use of the company. At the last trial of this cause much additional testimony was introduced to show that this fraudulent purpose actuated all who were concerned in that sale and who derived benefit from it.

No one can attentively read the evidence herein, without reaching the conclusion that relator was a mere figure-head, who assisted the other participants in wrecking the North Center Creek Mining & Smelting Company, and in endeavoring to cover up its assets from its numerous creditors, and that the trustee’s sale was one of the potent factors used to bring that result about. If the sale of the land itself was fraudulent and void, of course such fraud and consequent nullity would attend all the products of that land, and such products would be subject to seizure and sale at the instance of any judgment creditor, who had his option either to levy upon and sell the land and then proceed to set aside the pretended title of the relator, or else to sell the products of that land and thus make his debt; for, if the sale by the trustee to the relator was for any reason fraudulent on the part of the latter, it was void both at law and in equity, and was capable of being attacked by any person damaged by such fraudulent conduct. This is well-settled law.

The instructions given at the instance of both parties placed the salient issues in the case very well before the jury, and we see no reason for disturbing the conclusion reached by their verdict. We, therefore, affirm the judgment.

All concur.