Norton v. McNutt

Hemingway, J. 1. Burden of pr°°f' In a contest, as to the ownership of property seized under an execution, between an execution plaintiff and an interpleader, the statute provides that the trial court shall direct which party shall be considered plaintiff in the issue, and a direction that the interpleader should assume the burden of proof is not improper. Mansf. Dig., sec. 3045; State v. Spikes, 33 Ark., 801; Waples, Att., p. 481. 2. Presumpsession.0”1 p°s' Possession of property wholly unexplained is usually presumptive of ownership, but a declaration of this principle would have been misleading and improper in this case where the circumstances were fully disclosed. That the property once belonged to the execution defendant, and that it had been transferred by him to the interpleader before the levy, were conceded facts; the only issue was as to the character -of the transfer, whether fraudulent or bona fide ; and as to this, possession raised no presumptions. 1 Greenleaf, Ev., sec. 34, note; Rawley v. Brown, 71 N. Y., 85. 3. when gift The interpleader asked an instruction, in substance, that if his father, with no intent to hinder or delay his creditors, fore the issue of the execution in this cause, gave him the property, the gift was valid; and the court gave it by striking out the clause “ before the issue of execution in this cause.” The modification could not have prejudiced the interpleader. The third instruction asked was properly refused. Although the transfer was fraudulent as to the plaintiff, it was valid as between the parties, and the fact that the execution defendant had no claim of ownership did not exclude the claim of the plaintiff, who was at liberty to attack for fraud a transfer binding on the defendant. 4. Practice as to further in-«ructions. We cannot say that the court abused its discretion in refusing to give further instructions to the jury after it retired to consider of its verdict. There was but one issue, and as to it the jury had received all the instructions necessary to aid it in reaching a conclusion. To recall it for further instruction, was more than the rights of the parties or the ends of justice seem to have demanded. The instructions given on part of the plaintiff did no more than announce, in somewhat varied form, that if the defendant transferred the property to the interpleader with intent to defraud, hinder or delay his creditors, the verdict should be for plaintiff. We see no error in this regard. 5 Gifts Presumed fraudulent when. It is insisted that the verdict is without evidence to support . . _ . _ . . it, m this, that there is no proof of the defendant s insolvency at the time of the gift. Every gift of property by one indebted is presumptively fraudulent as to existing creditors y and upon proof of the gift the burden is cast upon those asserting it to show that the donor’s intentions were innocent, and that he had abundant means left to pay all his debts. Wait, Fraudulent Conv., secs. 93-4-5 . Bump, Fraudulent Conv., 276; Pratt v. Curtis, 2 Lowell, 90. The plaintiff was a creditor prior to the asserted transfer of the mule, and the jury was warranted in finding that it was made without any valuable consideration. In that case it was presumptively fraudulent; and as there is no evidence that the donor retained sufficient property to satisfy his creditors, the presumption becomes conclusive. Driggs v. Norwood, 50 Ark., 42. Finding the verdict sustained by the evidence, and having discovered no error in the record to the appellant’s prejudice, the judgment will be affirmed.