Joseph Cahn & Co. v. Groves , 46 Mo. App. 263 ( 1891 )

Ellison, J.

-Plaintiffs are creditors oí defendant, and sued out an attachment which was levied uj)on the •stock of goods in controversy. Mrs. Hopkins hied her interplea claiming the property. She prevailed below, and plaintiffs appeal. Defendant, prior to the attachment, was a merchant and owned the goods. He was indebted to plaintiffs and various other parties ; among others, to this interpleader. Interpleader knew of his debts. He owed her $5,000, and finding himself financially embarrassed, we will say insolvent, "went to inter-pleader, who is his sister, and proposed to her that to save her debt she should buy the stock. She made the purchase at the price of $8,000 which was to be paid by the surrender of demands against defendant, and giving to him her notes aggregating $3,000, with the understanding that if the stock inventoried less than $8,000 she was to be credited on her notes. If more than $8,000, she would pay the overplus in addition. She took immediate possession, but did not make an inventory till the levy of the attachment which was three days after the transfer.

The foregoing facts are stated as strongly against interpleader as the record will bear. From them, plaintiffs contend that there was a secret trust between defendant and interpleader, and, as such,' it was in law a fraud upon them as creditors of defendant, and that the case is covered by Molaska Mfg. Co. v. Stewart, 36 Mo. App. 496. We are not of this opinion. There is nothing to show that interpleader had any reserved interest in the goods. The.sale was absolute with a stipulation of a mode of ascertaining the quantity after ■delivery. The amount was thought to be $8,000.

The case belongs to that class where a sale is made to defraud creditors in which the fraudulent intent is shared by the vendee. And in this phase it was submitted to the jury by instructions for plaintiffs, and the issue has been found for interpleader. An examination of all íhe points made satisfies us that the judgment should be affirmed, and it is so ordered.

All concur.