Stinson v. Hawkins

13 F. 833, 4 McCrary's Cir. Ct. Rpts 500, 1882 U.S. App. LEXIS 2692

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: October 30, 1882
• Status: Published

Opinion

Treat, D. J.

The first point presented is as to the conclusiveness of the sheriff’s return against this defendant, who was -plaintiff in the attachment suit. That suit was instituted by this defendant against King, and the return states what property was seized thereunder. The defendant’s counsel- in this case urged that it was only prima facie and not conclusive; and that, as this court on the trial held otherwise, error was committed. Authorities are cited for defendant: 59 Mo. 80; Crocker, Sheriffs, § 45. The foot-notes to Crocker refer to several cases, and more especially to 2 Cow. & H. Notes, 795 et seq.; to Phil. Ev.,—in which all the cases therein decided are briefly stated.

Without reviewing the rhany eases in which defendant, on the relation of parties to the controversy, claims that the official return is to be considered prima facie or conclusive, this court can find no well-considered case, nor can it find any sound reason, for other than the ruling made at the trial, viz.: That, as between the parties to this suit, the sheriff’s return was conclusive against this defendant as to the fact of seizure and articles seized. True, the plaintiff was not a party to the attachment suit, and was not concluded by what was done therein, but the defendant was a party thereto, and the moving party. He caused the seizure, obtained the judgment, and .reaped the fruits thereof. The suit now before this court is one in which the plaintiff alleges that the property seized and sold under judicial process in that attachment case against King, at the instance of this defendant, who was plaintiff in that attachment case, was not King’s property, but the plaintiff’s. The judicial record in the attachment case shows what was done adverse to the alleged rights of Stinson, for which Hawkins is liable. Hawkins was not only the moving party in that case, but through judicial sale, as the record discloses, received the benefits thereof. Jan he dispute the record to which he was a party in this collateral proceeding ? True, the plaintiff here, not being a party thereto, would not be concluded thereby, but the defendant is. Hence, no error is found as to that point.

The second ground of error is that the court’s charge was too narrow, and must have misled the jury. As to this, the defendant is correct, in the light of decisions quoted. A sale of property, even for full value, in order to hinder or delay creditors, both vendor and vendee knowing the fraudulent purpose, cannot be upheld. Does a different rule obtain when a mortgage is given, especially for an antecedent debt, and particularly one of long standing? The circumstances of this case called for fuller instructions than were given; but as the line of evidence and the special contention was, by defendant, that plaintiff’s mortgage was largely in excess of any sum justly his due from King,'and that the jury should so find, the court pointed the inquiry sharply in that direction, and other elements were omitted.

As the caso will again have to go to a jury, it is not proper to analyze or discuss the testimony. A party giving an'd a party receiving a preference can ordinarily uphold the transaction; but the good faith thereof is still open to investigation. Was the alleged preference merely to secure a valid, subsisting demand, and made in good faith, or was it given, not to secure the mortgagee, but to cover up the mortgageor’s property, so that honest creditors could not reach the same, and the mortgageor practically or actually remain in the possession and enjoyment thereof? In other words, was the mortgage given for a fraudulent purpose, and assailable for fraud, despite the alleged consideration?

The motion for a new trial is sustained.