Benbow v. Kellom , 52 Minn. 433 ( 1893 )

Dickinson, J.

Appeal by the plaintiff from an order refusing a new trial'. One Conrad recovered a judgment against J. C. Hunt, one of the defendants. Thereafter Hunt entered into a contract with the defendant Kellom, by the terms of which the former, being then insolvent, transferred to the latter a certain certificate of deposit, and a gold watch, in consideration of the agreement of the latter to support the former during his (Hunt’s) life. This agreement was made for the purpose of defrauding Hunt’s creditors. Proceedings supplementary to execution were afterwards instituted, and Hunt was required to appear before the judge of the district court for examination concerning his property. In the course of such supplementary proceedings the court made an order restraining Kellom from disposing of the certificate and watch, which order was directed to be served on him. It was so served on the 18th of August, but before that, and on the same day, Kellom had redelivered the property to Hunt, and the contract between them was rescinded. The plaintiff, Benbow, was afterwards appointed receiver of the property of Hunt, and, having demanded from Kellom a delivery of the property, he prosecutes this action against both Kellom and Hunt, seeking an adjudication that the transfer to Kellom was fraudulent and void; that the property be applied to the satisfaction of the judgment; and that the defendants account to the plaintiff for the property. , Kellom was not, so far as appears, made a party to the supplementary proceedings. The court found that the contract was fraudulent and void, but that Kellom was absolved from liability by his returning the property to Hunt before the service of the restraining order. The questions presented on this appeal relate to the liability of Kellom, the plaintiff insisting that he should have been held to responsibility in this action.

The findings of the court are certainly in accordance with the evidence; and if Kellom returned the property to Hunt, surrendering all claim thereto, prior to the time when, by order of the court, he became effectually restrained from thus doing, there is no legal liability on his part. He was responsible to .the plaintiff, if at all, only in respect to the property of the judgment debtor held by him. Although the transfer of the property to him was voidable at the instance of the creditors of Hunt, it was valid as between the parties. The mere transfer of the property to Kellom did not make him. personally responsible for the debts of Hunt; and, unless he was restrained by some order of the court, he was legally justifiable in returning the property to the judgment debtor. He is not answerable to the plaintiff, because he did not retain it.

The plaintiff, however, claims that, before the property was retransferred by Kellom to Hunt, the former was orally enjoined by the court from making any disposition of it. This is the only point in the case concerning which there can be any reasonable doubt.

But it was considered by the trial court that the evidence did not establish the fact thus relied on, and this conclusion should be sustained. The evidence presented in proof of the fact just referred to consisted only (as is apparent from the restrictive terms of the order) of a writing, signed by the judge, in terms referring to “the witness H. S. Kellom” as being in the presence and hearing of the court, and reciting that “it was ordered, by the court that he, the said H. S. Kellom, make no sale, transfer, or other disposition of the certificate of deposit or watch referred to by him in his evidence,” etc. ■ Even if we are to infer that this order was made in connection with the supplementary proceedings before referred to, and that the certificate of deposit, and the watch therein named, are the same property which is the subject of this action, and even if the recital in that writing, of the presence of Kellom at the time it was made, constituted evidence that he was present, so as to be bound by the order, still the evidence is deficient, for it does not appear when this order was made. Too much was left to mere inference or conjecture. It may be well doubted whether that order was made under circumstances making it obligatory on Kellom, from the fact that, under the date of August 15th, the'same judge made a formal order to the same effect as that just referred to, which he directed to be personally served on Kellom, but which, was not served until after the latter had redelivered the property to Hunt, as before stated.

’ Order affirmed.

(Opinion published 54 N. W. Rep. 483.)