Torreyson v. Turnbaugh, 105 Mo. App. 439

Torreyson v. Turnbaugh

105 Mo. App. 439 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above).

1. As has been frequently stated in the numerous cases found in the appellate courts of this State an interplea is another and independent action engrafted on the original proceedings, in which the interpleader assumes the attitude of plaintiff and the attaching creditor that of defendant; being substantially and in effect an action of replevin for the recovery of the specific property levied on under the attachment writ, and in which it .devolves upon the interpleader to establish, that he was owner of such property at the time it was attached, or that he had a special interest therein and was entitled to its possession. Brownell v. Barnard, 139 Mo. *444142; Graham v. Crowther, 92 Mo. App. 273; Ely v. Mansur, 87 Mo. App. 105; Stadden v. Lusk, 95 Mo. App. 261; Dry Goods Co. v. Carr, 83 Mo. App. 318; Hardware Co. v. Hardware Co., 75 Mo. App. 518; Carp v. Itskowitz, 77 Mo. App. 592.

The respondent over objection of appellant was permitted to repeat in evidence, statements asserted to have been made to him by defendant, Turnbaugh, respecting his own financial condition; these statements were mere hearsay, the party, whose admissions or utterances they purported to be, was no party to the issue on trial, they were not offered as foundation for impeachment, nor were they pertinent to any issue on trial, and they could not but be highly prejudicial to the interpleader’s rights and should have been excluded.

2. The interpleader asked the following instruction, which the court refused:

“The court instructs the jury that, although the sale claimed between Turnbaugh and Luster was first made in fraud of Turnbaugh’s creditors, yet if you further find that said Torreyson brought an attachment suit claiming that said sale was fraudulent and dismissed the same upon the payment of the $375 note and released the stock of goods attached and at the time of said dismissal said Luster claimed said stock of goods as his and became .a. party to such dismissal and settlement, and said Torreyspn dismissed said suit, knowing that said Luster claimed the stock and consented to such claim and accepted the said money paid by Turnbaugli, knowing it was from the purchase price of said stock of goods and paid to said Turnbaugh by said Luster for the said purchase, then said Torreyson consented to said sale and can not complain of the same nor claim that it was fraudulent and void as against creditors, and you will return a verdict for .the interpleader.”

There was testimony, from which it might he fairly inferred, that respondent was aware of the source from *445which, defendant obtained the funds, by which he made payment to him, upon receipt of which the first attachment suit was dismissed; and tending to show that such money was part of the purchase price paid defendant by appellant for the' stock of goods. If the sale by defendant to appellant was originally in -fraud of the creditors of the former, such fraudulent transfer was but voidable, and capable of being rendered valid by its subsequent recognition or approval by plaintiff; if he accepted the payment of $385 made in discharge of the note, principal and interest, from the money paid defendant by appellant for the goods with knowledge on his part of the source and consideration of defendant’s obtaining it, such action on plaintiff’s part would constitute a ratification of and assent to the sale, and preclude him from thereafter impeaching as fraudulent the transaction between defendant and appellant. It is manifest that it would be gross injustice to permit plaintiff to realize payment of an indebtedness due him from defendant from the purchase money and consideration of the sale of the goods by defendant to interpleader, and later allow him to impugn as a fraud upon him, the contract between the vendor and vendee, by which he had profited by his acceptance of a part of the proceeds, and to which, in a measure, he had thus made himself a party. “A fraudulent transfer is merely voidable and consequently is capable of confirmation, either by assent at the time, or by a subsequent ratification, for no one - can predicate fraud of facts which have his assent upon a full knowledge of them.” Bump, Fraudulent Conveyances (4 Ed.), sec. 455.

The doctrine that a creditor who knowingly acquiesces in a sale and accepts benefits arising from it can not afterwards attack it on the ground that it was made in fraud of creditors, is elaborately considered by the Supreme Court in the case of Thompson v. Cohen, 127 Mo. 215; after a lengthy review of the authorities *446gathered from England,’ as well as in the United States, the above principal was therein applied and the creditor held estopped by his own action, and that case is decisive here.

The instruction above quoted should have been given.

The judgment is accordingly reversed and the causa remanded.

Bland, P. J., and Goode, J., concur.