Wright v. Crockett , 7 Mo. 125 ( 1841 )

Opinion of the Court by

Scott, Judge.

This was an action of trover, brought by Geo. M. Wright against Wm. Crocket, for taking and converting property conveyed in trust to the plaintiff by James Wright, for benefit of his creditors. On the trial of the cause, the plaintiff introduced a witness, who proved that as constable, and by the direction of the defendant, he levied an attachment in his, defendants, name, against James M. Wright, the grantor in the deed of assignment, on the property conveyed to the plaintiff; and that when the defendant directed the witness to make the levy, he spoke of the deed of trust having been made, and complained that his debt was not secured by the same; the property mentioned in the deed was delivered to the plaintiff, except a horse in another county, and some hogs running at large. The deed of assignment was given in evidence, and after some other testimony, not material to be detailed, the defendant moved the court to instruct the jury that the plaintiff could not sustain this action, without proving the assent of the creditors to the deed of trust, or some of them. Which instruction the court gave, and thereupon the plaintiff submitted to a nonsuit, and afterwards moved to set it aside, which motion was overruled, and the cause is brought here by appeal. The instruction of the court to the jury is the error complained of.

jf a convey, °.f Pr°p-erty is not prohibited by thf ruIes orof?eg?siaturetIie foj ita ,disP°-sal, or because it affects the rights of creditors or purchasers, its validity cannot be questioned.

In whatever light a general assignment of property for the benefit of creditors, with or without their assent, may be received, whether as valid or invalid, its invalidity, if such is its character, is traced to the statute prohibiting fraudulent conveyances, which was enacted for the protection of creditors and purchasers. No one can complain of the invalidity of such assignments, unless it shows that he holds the one or the other of these relations to the person by whom they are made.

If a conveyance of property is not prohibited by some law, as violative of the rules ordained by the legislature ,. , . . „ . . , its disposal, or because it afreets the rights of creditors or purchasers, its validity cannot be questioned. It is between the parties. In this case there is no evidence showing that the defendant was a creditor of the grantor the deed of assignment, the mention of the fact by the r J witness, that lie acted under an attachment, and sold the property by virtue of an execution, is evidence that there was an attachment and execution, but what were their contents does not appear, nor could they have been proved by parol, without laying a proper foundation for such testimony; nor is it to be presumed for the defendant that the writs of attachment and execution were founded upon a debt and judgment, although the process alone would be a sufficient justification to the officer, yet as to the dependant, it was necessary that he should have produced his judgment, and until its production, he did not show himself in a situation to defeat the assignment made to the plaintiff. The act against fraudulent conveyances does not avoid them against all the world, but only against creditors and purchasers.

Where a judgment creditor seeks to avoid a conveyance on the ground of fraud he must produce his judgment,

Let the judgment below be reversed.