Edmundson v. Silliman

Moore, Chief Justice. The only question in this ease is, Does the evidence upon which it was submitted to the court warrant the judgment ? Giving to it the most favorable construction for appellee of which it is susccjdtibie, we feel constrained to say that, in our judgment, it does not. Without pausing to consider upon whom the burden of proof properly devolved, and entirely discarding from our consideration the testimony of appellant’s witness, we think the evidence shows, beyond all question, that the bill of salé from Kirk and wife to appellee was made by the former with the intent to defraud, delay, and hinder their creditors in the collection of their debts; and that appellee must be held chargeable with notice of this fraudulent purpose, if, indeed, the evidence is not amply sufficient to show that he was not in fact cognizant of and a participant in this fraudulent design. Looking at the transaction in the light it is presented by appellee’s testimony alone, it is difficult to conceive that there was not some secret understanding between the parties to a transaction so extraordinary and apparently so greatly at variance with the regular course and usage of business. Appellee knew that Kirk was hard pressed; that he had agreed to pay him five per cent, per month for money borrowed to pay freight bills. Their places of business were within a few doors of each other. It is hardly possible that appellee could have been ignorant of Kirk’s pecuniary em- ' barrassment and utter want of credit, which seems, from the testimony of his own witnesses, to have been a matter of general notoriety in the community in which they lived. Doing business so near him, he must have had some general knowledge at least of the amount and value of Kirk’s stock. He could not have thought that a man of capacity to make [113] a business transaction could, for an honest purpose, wish to convey his entire stock, amounting to more than $700, and, as we are warranted in supposing, all his property which could be reached by his creditors, to a single creditor, to pay a debt of but $203. If it had been the purpose of the parties to make a fair and bona-fide sale and purchase of the goods, there surely would not have been such seeresy in the offer to sell or such haste in the consummation of the trade as were exhibited in this transaction. Other facts, tending in the same direction, are exhibited in the record, but further comment is deemed unnecessary. The judgment is reversed and the case remanded. Reversed and remanded.