Ott v. Smith Bros.

Cooper, J., delivered the opinion of the court. Appellees sued out an attachment against Porter & Webb, upon the following grounds :— 1. That they had property or rights in action which they concealed and refused to apply to the payment of their debts. 2. That they had assigned or disposed of, or were about to assign and dispose of, their property or rights in action, or some part thereof, with intent to defraud their creditors. 3. That they had converted, or were about to convert, their. property into money or evidences of debt with intent to place it beyond the reach of their creditors. 4. That they had fraudulently contracted the debt sued for. The attachment was levied upon certain goods which appellants claimed to have bought from the defendants in attachment. Judgment by default against the defendants in attachment was recovered, and upon the trial of the claimant’s issue this judgment in attachment was introduced in evidence. At the instance of the plaintiffs, the court charged the jury, that this judgment was prima facie evidence that the sale to the claimants of the goods attached was fraudulent and devolved upon them the burden of showing that they were purchasers in good faith for value. This was error. The attachment, for aught that appears in the record, may have been rightly sued out upon the ground that the defendants therein had fradulently contracted the debt sued for, or because they had property which they concealed and unjustly refused to apply to the payment of their debts. We have been referred to no authority supporting the instruction in any view which may be taken of it. Certainly there is nothing in the case of Richards v. Vaccaro, 67 Miss. 516, which warranted the present instruction. In that case the fraud of the seller in the particular sale under which the claimant claimed was abundantly shown by competent testimony, and under these circumstances we held that it devolved upon the claimant to establish his own good faith and [775] payment of the purchase price, which, being shown, would protect his title notwithstanding the fraud of the seller. We have not held that the judgment against the defendant is evidence, as against the claimant, of the facts on which it rests. The judgment is reversed.