Stein v. Burnett , 43 Mo. App. 477 ( 1891 )

Gill, J.

This is an action of replevin, brought by plaintiff Stein against defendant Burnett, for the recovery of some horses and cattle claimed by the plaintiff, but which defendant, as constable in Johnson county, had levied upon as the property of one Elam Spillman, defendant in an attachment suit of Eads & Co. ®. Spillman. Spillman was a farmer and stock-dealer, residing on land owned by him seven miles northwest of Warrensbiirg, while plaintiff Stein, his brother-in-law, resided in the same neighborhood and occasionally worked on Spillman’s place. Spillman had become largely in debt to various parties, Eads & Co. among the number, and in the early part of September, 1888, departed for parts unknown, leaving his creditors unprovided for — having disposed of all his property beforehand. Eads & Co. brought attachment, alleging as grounds therefor the fraudulent disposition of property,and that Spillman was about to move out of the state with intent to change his domicile. Under this writ of attachment defendant Burnett, as constable, seized the property in dispute, then in plaintiff’s possession. Stein thereupon brought replevin. At the trial, after all the evidence was in, the court gave a peremptory instruction for defendant, when plaintiff took a nonsuit with leave to move to set the same aside — which motion was made, was by the court overruled, arid plaintiff now prosecutes this appeal. The propriety of the court’s action,in thus taking the case from the jury, is the material matter here for our determination. Stein claims to have purchased the property in dispute of Spillman, and at the time of purchase he was ignorant of any intended fraud on Spillman’s creditors. The evidence satisfactorily established Spillman’s intention to convert his property into money and to depart the country without in any way adjusting his indebtedness. The fact, too, stands undisputed, that at the time the purchase by Stein was finally concluded by the payment of the purchase price, he (Stein) was fully informed of Spillman’s fraudulent conduct. Stein, himself, testifies that he first agreed with Spillman for the purchase of the stock at and for the gross price of $306, but that the matter was not closed up and the price paid until a few days thereafter, and he admits that in the meantime Spillman had left the country, and that he (Stein) was informed of the fraud perpetrated by Spill-man on his creditors. Indeed, it stands undisputed that the purchase money was not paid until after the constable had seized this stock by virtue of the attachment writ in the case of Eads ®. Spillman. The levy of this writ was notice to the pretended vendee, Stein, of the imputed bad faith of the sale by Spillman, and if he thereafter paid the purchase money the law will not protect him as an innocent purchaser. Arnholt v. Hartwig, 73 Mo. 485.

Spillman, at the time of this alleged sale to Stein, was about to leave the state with intent to change his domicile. He was not, therefore, entitled to hold this property as exempt from said attachment. R. S. 1879, sec. 416. Since then Spillman could invoke no such protection from the statute of exemptions, neither can his pretended vendee. State ex rel. Fowler v. Chaney, 36 Mo. App. 513.

The objection here made to the introduction of the record and proceedings of the justice of the peace in case of Eads v. Spillman, we shall not discuss, since to exclude the same abundant evidence remains to establish conclusively all that might be shown by the record. From the testimony now before us (excluding even the justice’s record) the conclusion is irresistible that Spillman deliberately set about to reduce his property to money and then depart, for the unrighteous purpose of defrauding his creditors. And from an examination,too, of this evidence we feel quite sure that Spillman was aided therein by this plaintiff. At all events the judgment of the lower court is clearly for the right party, and the same is affirmed.

All concur.