Spencer v. Deagle

Bates, Judge, delivered the opinion of the court. This was a suit by attachment upon an account for goods sold and delivered. The affidavit for the attachment stated, that by contract the defendant was bound to pay for said property on delivery; that the defendant had fraudulently conveyed or assigned his property so as to hinder and delay his creditors ; and that the defendant was about fraudulently to conceal or dispose of his property or effects, so as to hinder or delay his creditors. The defendant filed a plea in the nature of a plea in abatemont, putting in issue the truth of the facts alleged in the affidavit. Upon the trial of the issues thus made, the jury rendered a general verdict for the plaintiff, upon which judg — 457 — menfc was rendered that the defendant “ had fraudulently conveyed or assigned his property so as to hinder or delay his creditors in manner and form as alleged in the petition herein.” No objection -was made or preserved as to the form of the verdict or judgment. At the trial some evidence was given tending to prove that the articles sold and delivered were by contract to have been paid for on delivery. The evidence was different as to some articles from what it was as to others. Evidence was also given that the defendant had given a deed of trust of personal property to secure a note for $2,500; and the defendant himself gave testimony tending to prove that he did not owe the whole amount of $2,500 mentioned in the note, but that he owed a portion of it, and the remainder of the note was intended to cover money and goods which he expected to receive from the payee. The note was also ante-dated. There was no evidence given tending to prove that the defendant was about fraudulently to conceal or dispose of his property or effects. Among other instructions the court gave for the plaintiff the following: “ If the jury find from the evidence that before the institution of this suit the plaintiff had sold merchandise to defendant which was to be paid for on delivery, and which was not so paid for, they will find for the plaintiff.” The form of this instruction is objectionable in that it applies to merchandise generally, when it should have confined the inquiry to that referred to in the issue. The defendant may not have been injured by it, and it is referred to because the case must be reversed for another reason. Tlio defendant asked the following instruction, which was refused : “ This jury are instructed that to render the deed of trust in question fraudulent as to Deagle’s creditors, it must appear from the evidence, and you must be satisfied that the deed was executed for that purpose. It is not enough that the effect of the deed is such as to delay creditors of defend — 458 — ant, lie must have executed it with that purpose and intent.” This instruction should have been given. The deed itself appeared to be fair, and made in good faith, and the intent to delay creditors was necessary to constitute it a fraud upon them. Other instructions were given, and others refused, which it is not necessary now to notice. After the judgment upon the plea to the affidavit, the defendant made no further answer, and final judgment was given against him. The final judgment, and the judgment upon the issue made by the plea to the affidavit, are reversed and the cause remanded. Judges Bay and Dryden concur.