Reed v. Pelletier

RxchardsoN, Judge, delivered the opinion of the court. Tlié plaintiffs sued out an attachment against the defendants on the ground that they had fraudulently conveyed or assigned their property so as to hinder, delay or defraud their creditors, and the defendants filed their plea in the nature of a plea in abatement traversing the truth of the affidavit. It appeared, on the trial of the issue made on the affidavit, that the defendants had made a deed of trust conveying their stock of goods in the store kept by them as merchant tailors for the purpose of securing an indebtedness to Hugh Boylo & Co., which contained a stipulation that the property conveyed should remain in the possession of the defendants until the notes became due, when, if they were not paid, the trustee should have the right to take possession and sell. There was evidence tending to show that the defendants remained [177] in possession of their store and continued to sell the stock of goods included in the deed in the usual course of business until the trustee took possession. For the purpose of applying to the deed the principle decided by this court in the cases of Brooks v. Wimer, 20 Mo. 503, Walter v. Wimer, 24 Mo. 62, and Stanley v. Bunce, 27 Mo. 269, a witness called by the plaintiffs was allowed to repeat, against the defendants’ objections, a conversation he had had, in the defendants’ absence, with Mr. Boyle, in which the latter had stated that the defendants had the right to sell the goods in the ordinary course of business. When the maker of a deed of trust or mortgage that conveys a stock of goods continues in possession and sells in the usual course of business, with the knowledge of the cestui que trust, very slight evidence ought to be required to prove that his dealing in that manner with the property was pursuant to a right secured contemporaneously with the execution of the instrument, which would stamp the transaction with constructive fraud, at least, as effectually as if the provision had been incorporated into the deed. But when the cestui que trust is not a party to the suit, and is a competent witness for either of the parties, and is not shown to have been in any conspiracy with the person to be affected by his declarations, we do not see on what principle his declarations, which are mere hearsay, are admissible, and in our opinion the declarations of Boyle were improperly received as evidence against the defendants. The term fraud, as understood in the statute concerning fraudulent conveyances, has the same meaning in the attachment law, and it is not necessary to show that the act originated in any meditated design to commit a positive fraud or to injure other persons. There are many acts not the result of intentional fraud which the law, nevertheless, from their tendency to deceive other persons, or from their injurious consequences to the public, prohibits as being within the same reason and mischief as actual fraud. And whatever, by the judgment of the law, is denounced as fraudulent must [178] be regarded in the same light in reference to an act or transaction which is made the ground of an attachment; and if the act charged to have been committed is fraudulent, actual or constructive, it will be inferred that the party intended its natural and ordinary results should follow. There are thirteen cases in which an attachment may issue under our statute, and it will be observed that the “ intent” of the party liable to the writ is not a necessary ingredient except for the causes enumerated in the fifth and sixth clauses of the first section. (E. C. 1855, p. 288.) The affidavit will be good if it follows the language of either of the clauses, and it is never necessary to prove more than the party is required to swear to. If the attachment is based on either the seventh, eighth, ninth or tenth clauses, it Will be sustained on proof that the defendant fraudulently had done or was about fraudulently to do any of the prohibited acts; and whether the act be fraudulent will depend on the judgment which the law pronounces upon it. The other judges concurring, the judgment will be reversed and the cause remanded.