State ex rel. Kramer v. Mason

Sherwood, J. Action on sheriff ’s bond, brought to the use of Kramer & Loth, because of a levy made by Mason, as sheriff, by virtue of a writ of attachment on a large quantity of merchandise as the property of one Trepp, which property plaintiffs claimed as their own, and which they alleged was lost to them by reason of the levy and the seizure of the goods. The answer of the defendants, among other things, alleged in substance and effect, that the property seized under the writ was [565] the' property of said Trepp, who had fraudulently transferred it to plaintiffs with a view to defraud the creditors of Trepp. The evidence introduced tended to show fraud, and there was evidence of a contrary effect. The instructions given and those refused will accompany this opinion. Trepp was indebted to Kramer & Loth, the relators, in the sum of $171.68, on open account, $529.06 on note, and they were accommodation endorsers for him on a note for the sum of three thousand dollars, payable at the Fourth National Bank; the indebtedness of Trepp then aggregating some thirty-seven hundred dollars.' The bill of sale recites that the goods mentioned therein were transferred to relators upon consideration of the account and note for-$529.06, and in satisfaction thereof, and upon consideration that they assumed the payment of the note for three thousand dollars. Both these notes were, it seems, in bank, and when afterwards they matured they were paid by relators ; this was something over a month subsequent to the attachment of the goods, and the verdict of the jury fixes the value of those goods at something less than the price which relators paid, and assumed to pay for them. The main point in the cau se is this : Are relators, with respect to the note for three thousand dollars, tobe regarded as creditors of Trepp, or are they to be regarded as mere purchasers of the goods sold ? This question is answered by the case of Albert v. Beset, 88 Mo. 150, where, in similar circumstances, a surety on a promissory note was regarded as a creditor and not as a purchaser, and, therefore, to be governed by those rules which pertain -to those persons, who, in order to secure some existing indebtedness, or to secure themselves against some existing liability, buy at a fair valuation, the property of their failing debtor and at the same time, in consideration of their purchase, satisfy the debt or assume the liability. The fact that in this case, the relators [566] were accommodation endorsers of Trepp, does not alter the complexion of this case, nor cause it to differ from the one cited ; for, as between the bank and relators, the latter were as firmly bound to pay the note which they had endorsed for the insolvent, Trepp, as though they had been his mere sureties on the bank paper. St. John v. Camp, 17 Conn. 222; Bump on Fraud. Convey. [ 3 Ed.] 187, 225, and cas. cit. The instructions given by the court are in accord with this position, and they are sufficiently comprehensive to cover the issues in the case. As to the first instruction asked by defendants, it was properly refused, aside from reasons already stated, because it assumes a fraudulent purpose on the part of Trepp. Therefore, judgment affirmed. All concur,. Eat, J., absent.