Clayton v. Clark

92 P. 1117, 76 Kan. 832, 1907 Kan. LEXIS 333

• Court: Supreme Court of Kansas
• Decided: December 7, 1907
• Docket: No. 15,243
• Status: Published

Opinion

The opinion of the court was delivered by

Graves, J.:

The district court has drawn a distinction between an act done with intent to defraud creditors and the same act when done merely with intent to hinder and delay creditors in the collection of their claims which we do not think applicable in this case.

The- affidavit for attachment charges -that the acts complained of on the part of the defendants were done “for the 'purpose and with the fraudulent intent to defraud their creditors.” No charge is made, unless it is contained in these words, that they were done with the intent to “hinder” and “delay” (Gen. Stat. 1901, § 4624) their creditors in the collection of their claims. The court finds that what the defendants did was done “for the purpose of, with the intent to, and to the effect of, hindering and delaying their creditors in the collection of their claims,” but as no specific intent to defraud their creditors was shown the court found the ground of the affidavit not sustained.

We suppose this finding and order were made upon the theory that the ground stated in the affidavit, and the one found to have been established by the evidence, were separate and distinct from each other. In the view we have taken this was erroneous. The language of the affidavit — “for the purpose and with the fraudulent intent to defraud” — is sufficiently broad and comprehensive to include the term “hinder or delay,” as the greater includes the less. In volume 2 of Words & Phrases Judicially Defined, at page 1949, it is said, on the authority of Weber v. Mick et al., 131 Ill. 520, 28 N. E. 646, that the word “ ‘defraud,’ as used in the phrase, ‘disturb, hinder, delay, or defraud creditors,’ is the most generic term of the four, and really includes all the others, since to ‘disturb, hinder, or delay’ a creditor in the collection of his debts are only different modes of ‘defrauding’ him of his rights, and these words are used merely as more specific statements of various forms of fraud.” (See, also, 14 A. & E. Encycl. of L. 244; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402; Armstrong v. Ames & Frost Co., 17 Tex. Civ. App. 46, 51, 43 S. W. 302; Petrovitzky v. Brigham, 14 Utah, 472, 47 Pac. 666; McBryan v. Trowbridge, 125 Mich. 542, 84 N. W. 1084.) The affidavit, therefore, covers the finding of the court, and the motion should have been denied.

If it was the purpose of the court to decide that an intent on the part of the defendants to defraud the plaintiff must be shown, we also think such a conclusion erroneous. An intent to defraud, hinder or delay the plaintiff or any creditor is sufficient to give any other creditor the right to an attachment. (Waples, Attach. & Gar., 2d ed., § 71; 3 A. & E. Encycl. of L. 201-244; Noyes, Norman & Co. v. Cunningham, 51 Mo. App. 194; McBryan v. Trowbridge, 125 Mich. 542, 84 N. W. 1084; Sherrill v. Bench & Bro., 37 Ark. 560.) In the last-named case an instruction was sustained which reads:

“It need not appear that the defendant had disposed' of his property with the fraudulent intent to cheat, hinder or delay the plaintiffs; but if it appear from the evidence that the defendant had sold or otherwise disposed of his property, with the fraudulent intent to cheat, hinder or delay any one of his creditors, this will be sufficient.” (Page 561.)

The judgment of the district court is reversed, with direction to deny the motion to dissolve the attachment and proceed with the case in accordance with the views herein expressed.