Sellers v. Bailey , 1888 Mo. App. LEXIS 68 ( 1888 )

Ellison, J.

Bailey instituted an attachment suit against Henry Weaver, and attached two cows as the property of Weaver. Sellers filed his interplea claiming the cows as his property. A trial resulted adversely to the interpleader and he appeals. The interpleader claims to have purchased the cows from the defendant in the attachment suit and the case presents two questions: (1) Was the sale by Weaver to Sellers made with intent to hinder, delay, or defraud his creditors % and (2) did Sellers participate in the fraud, or did he know of the fraud intended by Weaver? There was evidence in the cause tending to support both sides of both questions, and if the instructions given by the court were correct expositions of the law governing the case and fully covering the. issues presented, we will affirm the judgment, notwithstanding some instructions may have been refused, which, in themselves, .were correct.

Interpleader contends that the verdict is against the weight of the evidence. We need only reiterate, with-out citing authorities, that we will not weigh evidence which has been passed upon by the trial court. In the absence of anything showing prejudice, passion, or corruption on the part of the jury, we wilh-not disturb a verdict on the ground of its being against the weight of the testimony. There was sufficient upon which to base the instructions of the court, and its reliability and weight must be left to the jury.

The evidence discloses that Weaver, who was indebted to various unsecured creditors, sold the property in controversy to interpleader, together with a large amount of other property, both real and personal, being all he owned; that the sale was made by interpleader assuming mortgages which were on the property, and paying the balance, of more than two thousand dollars, to Weaver, who immediately left the state, having thus disposed of all his property. The evidence also tended to show that, while Weaver left several creditors unpaid and unsecured, he used the greater part of the cash payment received from the interpleader in the discharge of other debts, the principal one being to his father, in Indiana.

The instructions given for interpleader present his side of the case in a fair and clear light, and I am unable to find any substantial objection to them as amended by the court. The first states Weaver’s right to make a sale of his property for the purpose, in good faith, of satisfying creditors, or any one of them ; that he had a right to prefer a creditor even though such preferred creditor may have been his relative. The second told the jury that, even though Weaver may have intended to hinder, defraud, or delay his creditors by the sale, yet, unless interpleader knew of such' intent or fraudulent design, “or was possessed of such facts'^ at the .time of . making such purchase, and before the payment of the purchase money, as would apprise him of the intent of said Weaver,” the sale would be valid. The portion of this instruction which I have quoted was added by the court, to- which exception was taken. The amendment was proper. It undoubtedly states the law, and, under the evidence in the case, it was proper to add it to the instruction as offered. Other instructions were given for the interpleader not necessary to notice. Instructions numbered two and seven were refused. I am not able to see' where any harm could result to inter-pleader by such refusal. All that was proper in either had already been given in others.

There is, in our opinion, no just ground for complaint in the- instructions for defendant. The first one states that if Weaver sold his property, intending thereby to hinder, delay, or defraud his creditors, and that interpleader knew of such intention, or “was in possession of such information, at the time, as would put a man of ordinary prudence, in business matters, upon inquiry as to the intentions of said Weaver in making such sale, then, in either case, said sale was fraudulent and void as to such existing creditors of said Weaver, and in such case it would make no difference what price may have been paid for said property.” We believe this to be a correct statement of the law. If interpleader participated in the fraud, or had knowledge of the fraud, which Weaver was perpetrating by the sale, or had information of such facts as would put an ordinarily prudent man on inquiry, th¿ sale to him was void, notwithstanding he paid value for the property. The fact that he jiaid for the property will not relieve him from the consequence of having become a party to the fraud. It must be borne in mind that interpleader was not taking this property in payment of a valid debt of bis own against Weaver, for in such, case, as Weaver would have a right to prefer a creditor, the creditor would, of course, have a right to receive the preference. It is true that interpleader took the property subject to certain incumbrances which were liens upon it in favor of others, but he, in addition, paid a large sum in cash:

By instruction number five, the jury were told that, although Weaver, at the time of the sale, intended to use a part of the proceeds in the payment of a certain debt, but yet intended further to hinder, delay, or defraud other creditors, and not apply the whole to the payment of his debts, and interpleader knew of such intent, the sale was void. This was a proper instruction ; from it the jury must still find a fraudulent design on part of Weaver, known to interpleader. The fact that a portion of the proceeds may have been used to pay a debt will not excuse the fraud as to other creditors whom it was intended to hinder, delay, or defraud. The' principles of law set forth in commenting on these instructions are supported by the cases of Shelley v. Boothe, 73 Mo. 74; Daugherty v. Cooper, 77 Mo. 528; Rupe v. Alkire, 77 Mo. 642.

Conceding the motion for a new trial was sufficiently specific to cover the objections now urged as to the evidence admitted and rejected, we are of the opinion that no substantial injury was done to interpleader by the court’s ruling in this respect.

We have given full consideration to the points made in the brief of counsel for interpleader, and do not find ourselves at any great variance with many of the principles of law therein announced and illustrated, nor do we think they differ materially from the views held by the trial court as set forth in the instructions. If the result reached is, in point of fact, a wrong upon inter-pleader, the responsibility must rest with the jury, whose province it is to pass on the evidence.

With the concurrence of the other judges, the judgment is affirmed.