SEPARATE CONCURRING OPINION.
STURGIS, J.I fully concur in the holding of the majority opinion that an attaching plaintiff on the trial of an interplea need not prove his indebtedness against defendant.
It is with some hesitation that I agree to the result reached in this case. The plaintiffs wrongfully assumed the burden of proof instead of letting the interpleader prove his title first. [Torreyson v. Turnbaugh, 105 Mo. App. 439, 443, 79 S. W. 1002, and cases, cited; Graham Paper Co. v. Crowther, 92 Mo. App. 273.] In doing so the plaintiffs assumed that the interpleader’s title was derived from defendant, his. father, and proceeded to destroy such assumed title by showing it to be fraudulent, that is, that the transfer was made from the father to the son to defraud the father’s creditors and that the son had knowledge' of and participated in such fraudulent intent. The plaintiffs adhered to this theory, as shown by their instructions asked and given, even after it was disclosed by the interpleader’s evidence that he was not claiming title through or from his father but by purchase and ownership, as to nearly all the cattle, independent thereof. This became the real issue in the case.
I do not want to be understood, by reason of passing it in silence, as holding that plaintiffs ’ instructions, on the question of a fraudulent sale are correct in declaring that, in finding that the interpleader had knowledge of the defendant’s intent to defraud his creditors, in making such sale, “knowledge of facts and circumstances which would put an ordinarily prudent man upon his notice of such intent, ’ ’ is equivalent to actual knowledge of such intent. Such is not the law in re*117iation to sales of personal property. Knowledge of facts and circumstances which would put an ordinarily prudent man on inquiry is evidence from which, together with any other facts and circumstances in evidence, a jury may find such guilty knowledge, but that is all. Knowledge of such facts is neither knowledge of the guilty intent nor an equivalent substitute therefor. [Phillips & Co. v. Rule, 124 Mo. App. 525, 102 S. W. 32; Sammons v. O’Neill, 60 Mo. App. 530, 536; Bank v. Tobacco Works Co., 155 Mo. 602, 608, 56 S. W. 283.] But this was not a material issue in the case. After the interpleader’s evidence was in, the real contention of plaintiffs was that the interpleader’s pretended purchase of these cattle for himself was merely colorable, in that he was using his father’s money and property, and that the real ownership was in the father at all times. It is conceded that the father was during all these transactions heavily in debt, if not hopelessly 'insolvent, and that the inter-pleader had knowledge of his father’s financial condition. Of course, if the interpleader’s title was in the nature of a gift from Ms father, under such circumstances it was fraudulent and void as a matter of law and the court would have been justified in so declaring or assuming. The question of the ownership of the attached cattle as between the interpleader and the defendant, and of the interpleader’s claimed purchase of the same in honesty and good faith, was squarely put to the jury in the other instructions given for the respective parties and I am persuaded that the erroneous instructions on such immaterial issue are not so prejudicial as to require a reversal.
I think it was also error, under the real issue in this case, to admit evidence of the defendant’s declarations of ownership of these cattle when not made in the presence or with the knowledge and acquiescence of the interpleader. The defendant is not a party to the trial of the interplea and such evidence is as to him *118hearsay. [Torreyson v. Turnbaugh, 105 Mo. App. 439, 444, 79 S. W. 1002; Clark v. Cox, 118 Mo. 652, 655, 24 S. W. 221.] Defendant’s title to these cattle could not he proven by his own assertions of ownership not known to or acquiesced in by the interpleader. Some of the evidence of this character was admissible because made in the presence and with the acquiescence of the interpleader. The part inadmissible was put in while plaintiffs were erroneously assuming the burden of destroying the interpleader’s supposed title derived from the defendant and was admitted only as tending to show the fraudulent intent of the defendant in selling or transferring the cattle to the interpleader. It was perhaps admissible for that purpose only and on such issue which was then in the case. [Holmes v. Braidwood, 82 Mo. 610, 614; Desberger v. Harrington, 28 Mo. App. 632, 636.] The interpleader did not request an exclusion of this evidence after the true issue was developed by his evidence and we ought not to put the court in error in this regard. Besides, the interpleader admits that the cattle had been on his father’s farm and under his control until a few days prior to the attachment, when the father left the state and the interpleader moved onto such farm; and his claim is that the father was feeding and taking care of the cattle for a share of the profits. Under all the facts, of this case. I have concluded that this evidence was not such as likely misled the jury as to the real issue and that the verdict is for the right party.
Farrington, J., concurs.