Bay v. Sullivan , 30 Mo. 191 ( 1860 )

Scott, Judge,

delivered the opinion of the court.

J. S. Talbot conveyed a horse to the plaintiff Bay in trust for the sole and separate use of Mora Byrne, the wife of Edmond Byrne. In the instrument of conveyance it is recited that the sale of the horse was in consideration of one hundred and thirty dollars paid by Flora Byrne and the sum of one dollar paid by the trustee Bay. The horse thus conveyed to Bay was levied on by the constable by the direction of the defendant Sullivan, who had an execution against Edmond Byrne, the husband of Flora Byrne. The horse was sold, and this suit was brought to recover in damages his value. There was a verdict for the plaintiff. The court instructed the jury to the effect that if the horse was purchased of Talbot with money of Dr. Byrne, and was conveyed by Talbot to Bay as trustee of Flora Byrne for the purpose of avoiding the creditors of Dr. Byrne, and that the constable levied on and sold the horse in favor of creditors of Dr. Byrne existing at the time of the purchase from Talbot, then there should be a verdict for the defendants.

As the only question in the case was whether the conveyance was fraudulent as being made to hinder and delay the creditors of Byrne, we are of the opinion that the instruction given by the court fully stated the law on that subject. The defendant has no cause of complaint for the reason that his instruction in relation to the same matter was not given.

The second instruction ashed by the defendants was that the bill of sale of itself was no evidence against them, either of the value of the horse, or of- the person by whom the money was paid. The verdict of the jury shows that, in estimating the value of the horse, they were not governed by his price as fixed in the bill of sale. We would not therefore disturb the verdict on this ground. As to the bill of sale being no evidence that the wife paid the purchase money for the horse, it was not necessary, to give her the property in him, that she should have paid any thing. If Talbot had voluntarily conveyed the horse to her separate use, the creditors of the husband would have no right to subject him to their executions. The question was, whether the horse was paid for with the money of the husband.

The third instruction asked by the defendants was clearly erroneous. It maintains that if a wife, with the intent to secure her separate property from the debts of her husband, conveys it to a trustee, the transaction will be fraudulent.

We see no error in the second instruction given by the court.

Judge Ewing concurring, the judgment will be affirmed. Judge Napton absent.