Hall v. Hart

Post, C. J. The subject of the controversy in this action of replevin is a certain stock of liquors taken by the plaintiff in [5] error, as sheriff of Box Butte county, to satisfy an order of attachment against David B. Ohase in a suit then pending, wherein David Wise & Co. were plaintiffs and the said Chase was defendant. Practically the only question at issue is whether one purchasing the stock and business of a licensed saloon-keeper, and by agreement continuing such business ostensibly in the name of, and by virtue of the license issued to, his vendor, will be heard to claim the property so purchased when taken to satisfy an execution or order of attachment against the latter for a debt existing at the date of such transfer. That question was by the district court, in the rejection of evidence offered and in directing a verdict for the plaintiff below, resolved in the negative, and is now, by means of the petition in error of the sheriff, defendant below, presented for determination by this court. We are unable to agree with the learned district judge in holding that the evidence offered is irrelevant to the issues presented. The sale and keeping for sale in this state, by any person, of intoxicating liquors without having first procured a license therefor, is a misdemeanor, for which a severe penalty is prescribed by statute. (Compiled Statutes, ch. 50, entitled “Liquors.”) If, as the evidence offered tends to prove, the defendant in error, by agreement with Chase, continued the business of the saloon in the name of the latter, and, by implication, claimed protection under the license issued to him, he will not now be permitted to assert his own turpitude by proof that the contract through which he claims is in violation of the penal statutes and a fraud upon the school fund of the state. Such a proposition is alike shocking to our sense of justice and opposed to the plainest principles of public policy and sound morals. It should, in justice to the district court, be observed that its conclusion results, not from any different views respecting the validity of the agreement involved, but from the apparent previous execution thereof by the contracting parties. The rule is, however, well settled that when [6] an insolvent debtor, or one in failing circumstances, parts with Ms money or property pursuant to an agreement of the character here involved, he will be held to stand in precisely the same position as if such payment or agreement had been voluntarily made for the purpose of defrauding his creditors. (Clark v. Gibson, 12 N. H., 386; Weeks v. Hill, 38 N. H., 199; Jose v. Hewett, 50 Me., 248; Laing v. McCall, 50 Vt., 657; Greenhood, Public Policy, 68 Wait, Fraudulent Conveyances, sec. 214; Bump, Fraudulent Conveyances, sec. 202.) It is clear, both upon reason and authority, that the agreement through which defendant in error is required to trace his title is void as to creditors of Chase, his vendor, and that the property in controversy was liable to execution for debts then owing by the latter. It follows that the district court erred in the rejection of the evidence offered, for which the judgment must be reversed and the cause remanded. Reversed and remanded.