Mendes v. Kyle , 16 Nev. 369 ( 1882 )

By the Court,

Belknap, J.:

This is au action for the recovery of personal property. The respondent justified the taking, as sheriff of the county of Eureka, under certain writs of attachment issued in . actions brought against one Prietas. The plaintiff claimed to be the owner of the property by purchase from Gerome, who was the vendee of Prietas. Defendant contended that the sale from Prietas to Gerome was fraudulent as against the attaching creditors, and as plaintiff purchased pending the attachment he was not a bona fide purchaser without notice. The case turned upon the bonafides of the sale from Prietas to Gerome.

Among other instructions the court gave the following:

“ The jury are instructed that in arriving at their verdict as to whether the sale from Prietas to Gerome was fraudulent or not, they are to take into consideration all the facts and circumstances surrounding the alleged. sale. If the jury shall find from the testimony that the price alleged to have been paid for the property was much less than it was worth, that is a fact tending to prove that the sale was fraudulent as to the creditors of Prietas, and the jury, are at liberty to find that the sale was fraudulent, and find for the defendant.

“If the jury shall find from the testimony that there was no immediate delivery of the property after the alleged sale, that is a fact tending to prove that the sale was fraudulent as to the creditors óf Prietas, and the jury are at liberty to find that the sale was fraudulent and find for defendant.

“If the jury shall find- from the testimony that Prietas, after the alleged sale, continued to use the property as he had used it before, that is a fact tending to prove that the sale was fraudulent as to the creditors of Prietas, and' the jury are at liberty to find that the sale was fraudulent, and find for the defendant.

“If the jury shall find from the testimony that Gerome, after the alleged sale, concealed the fact until Prietas’ failure, that is a fact tending to prove that the alleged sale was fraudulent as to Prietas’ creditors, and the jury are at liberty to find that tbe sale was fraudulent, and find for tbe defendant.”

Tbe instruction is correct in stating that inadequacy of consideration, concealment of tbe sale, and tbe vendor’s applying tbe property to tbe same use after as before tbe sale, were facts tending to prove fraud. Tbe instruction was also correct in directing, tbe jury to take into consideration all of tbe facts and circumstances of tbe sale, in determining whether it was fraudulent. But the repetition of tbe words, “ and tbe jury are at liberty to find that tbe sale was fraudulent, and find for tbe defendant,” following the separate statement of each fact tending to prove fraud, may have misled tbe jury. From it they may have understood that if any of tbe facts mentioned as tending to prove fraud existed, they would be justified in finding a verdict for tbe defendant, independently of tbe other facts of tbe case. Tbe constant repetition of tbe words last quoted was calculated to make'this impression. Tbe proper construction of tbe charge is, that if any oue of tbe badges of fraud mentioned be established, such fact, in connection with other circumstances of a fraudulent intent on tbe part of tbe vendor, is sufficient evidence to support a finding of fraud. But it-may have received the other construction, and thereby prejudiced tbe rights of appellant. o

We find no other error in tbe record.

Judgment reversed.