Johnson v. Mason

ROBERTSON, P. J. — Plaintiffs

sued the defendant, Peter T. Mason, in the circuit court of Texas county and thereafter, on March 29, 1913,’ obtained a writ of attachment and caused the same to be levied upon seventeen cows and two horses as the property of the defendant, then upon the farm previously occupied by the defendant but upon which the inter-pleader, Frank Mason, his son, was then residing. On June 16, 1913, the son filed his affidavit and claim to all of the cattle upon which this controversy is based. The trial in the circuit court resulted in a verdict and judgment in behalf of the plaintiffs and the inter-pleader has appealed.

The defendant, who, it is conceded, was heavily involved, on February 25, 1913, had a public sale of a portion of his property and soon thereafter left the state. It was developed by the testimony, however, that before he went he was guilty of such conduct as would justify the conclusion that he intended to defraud his creditors and that the interpleader so understood.

The testimony offered in behalf of the plaintiffs tends to prove that the father owned the property in controversy at and prior to the date of the levy and that he so stated in the presence of his son, who made no objections thereto, and the interpleader’s testimony tends to prove that he purchased and owned the cattle, either individually or in partnership with his father. Upon his claim of an interest by purchase from third parties, the jury, under, proper instructions, found against him. He is here now insisting that certain errors were made on the question of instructions in behalf of the plaintiffs relative to the alleged fraud of the defendant. As the interpleader rested his claim on the question of ownership, by reason of alleged purchases from other parties than defendant, we think that he should be confined to that issue here. We cannot understand wherein he can be heard to complain of any issue of fraud, because he cannot contend for a time that he bought the property from others than defendant, and, when that is disbelieved, change and claim that he bought from the defendant. When he elected to make the defense that he had purchased from others than his father and that defense failed, as it did, we must then hold that he succeeded to the possession of the stock as a fraudulent purchaser, as donee or bailee of his father. If as a fraudulent .purchaser, no one will question plaintiffs judgment; if as a donee, and it being conceded that the father was insolvent, then the interplea must fail, as a debtor should be just with his creditors before he is allowed to become generous with his relatives or friends (Welch v. Mann, 193 Mo. 304, 325, 92 S. W. 98, Star v. Penfield, 166 Mo. App 302, 304, 148 S. W. 382); if as a bailee, he is in no position to complain.

The interpleader insists, however, that since the plaintiffs claim that interpleader is holding as a fraudulent vendee of the defendant he can be such fraudulent vendee of the defendant only in event the plaintiffs were creditors of the defendant; consequently, that it is encumbent upon the plaintiffs in the trial of this case to prove that as a matter of fact the defendant was* indebted to the plaintiffs. This, in nearly every attachment case where there is an interplea, would necessitate the plaintiff proving his claim as against the interpleader as conclusively as if that is•sue were being tried against the defendant. It. would mean that there must be two trials of that issue and that plaintiff might win in one and lose in the other. Section 2300, Revised Statutes of 1909, requires the plaintiff, before obtaining his writ of attachment, to ■execute a bond conditioned for the protection of the •defendant and any interpleader; and Section 2345, Revised Statutes of 1909, permits an interplea to be filed in an attachment suit, which otherwise could not be done. So that the interpleader is placed in the attitude of taking advantage of a right conferred upon him by reason of the attachment laws, and if the plaintiff is required to prove his claim against the defendant, "then the interpleader is permitted to attack the very foundation of the privilege granted him. It is not ■encumbent upon the interpleader to file this claim, but it is simply an additional remedy and one in which he must be regarded as having recognized the validity ■of the attachment in filing his claim. The appellant here almost, if not quite, concedes that to be a fact when he says in his statement: “The writ of attachment nor any of the steps necessary to secure the same •or actions taken thereunder are not in question here. ’ ’

“The right to the property is the point at issue, and the interplea obviously should be heard and determined before the attachment. The determination of 'that issue in favor of the interpleader cannot, in reason or law, affect the plaintiff’s right in the principal ^action to a judgment on the merits against the defendant.” [Car Co. v. Barnard, 139 Mo. 142, 145, 40 S. W. 762.] We conclude that neither reason nor authority •exact of the plaintiff in an interplea that he prove his ■claim against the defendant, as that is not an issue in 'the proceeding. [Graham Paper Co. v. Crowther, 92 Ho. App. 273, 275; Beck v. Wisely, 63 Ho. App. 239, 243.]

The United States Circuit Court of Appeals of this circuit, in discussing an interplea in an attachment suit, uses this language: “It is a proceeding for the disposition of property or money in the custody of the court and not for the recovery of either from any person or party.” [Swift & Co. v. Russell, 97 Fed. 443.]

In the case of Sloan v. Hudson, 119 Ala. 27, 24 So. 458, it was held that the execution of the attachment bond estops the interpleader from denying the levy; and in Schloss v. Inmann, 129 Ala. 424, 30 So. 667, and Foster v. Goodwin, 82 Ala. 384, 2 So. 895, that “The existence of plaintiff’s debt, as well as the fact that the attachment was levied, the claimant, by assuming the position of claimant in the attachment suit, is held, in legal effect, to admit.” Again, in Pulliam v. Newberry’s Admr., 41 Ala. 168, it is said: “For the purpose of this controversy, the plaintiff must be regarded as a creditor without the production of proof of indebtedness.” And in Claflin v. Harrison, 44 Fla. 218, 31 So. 818, it was held that the interplea must necessarily be based upon the levy and that by interpleading the claimant admits the validity of the levy because without it the interplea would not lie.

Even where the plaintiff can sustain his attachment and prove the alleged fraud only by reason of the fact that he may be a creditor, we are of the opinion that in an interplea the claimant cannot exact of the plaintiff proof of his indebtedness against the defendant. Any other rule in this state, under our attachment laws and provisions for the interplea, would, in our opinion, lead to useless complications and unjust results. Authority may be found to the contrary in other jurisdictions, but such, in our opinion, has not and should not be the law here.

There are other questions sought to be raised by the appellant, many of which are necessarily disposed of by what we have said above and the others we deem not of sufficient merit to justify a longer opinion. The judgment of the circuit court is affirmed. Farrington, J., concurs; Sturgis, J., concurs in part and in the result and files a separate opinion.