Miller v. Bufton.

separated the accretions in dispute from the land of respondents, and they invoke the doctrine that accretions are not saltatory, i. e., that they could not leap the creek. DeLassus v. Faherty, 164 Mo. 1. c. 372, et seq. is relied upon. If appellants' theory of the facts is accepted that case supports the conclusion they draw. The same decision (1. c. 373, 374) justifies the judgment rendered if the facts are as the trial court found them. If the accretions formed upon the old river bank and extended across in front of the mouth of Shoal Creek they became at once a part of the land reaching the bank at that point. The subsequent cutting of a channel through the accretions formed would not affect the title thereto. This is held in DeLassus v. Faherty, and is sound law. In that case, as in this, any other judgment than that rendered would deprive respondents of all their river frontage. The judgment rendered gives them frontage and accretions proportioned to their original frontage prior to the formation of the accretions. This is in accord with well recognized principles. A judgment for appellants would extend their property "longitudinally down the river and between" respondents' land and the river. This does not appeal to the equities of the situation. was tried and is argued here as one at law. undoubtedly substantial evidence to support the finding of the trial court. If it be said the character of respondents' title transforms this into a suit in equity, we think proper deference to the finding of the chancellor requires us to say his finding must be upheld. This, because the evidence on the disputed question is well balanced and he was in better position to resolve the conflict.

The case
There is

III. Complaint is made of the refusal of an instruction. Though the case be treated as one at law this assignment must be overruled. Instructions given sufficiently covered the question involved. Affirmed. All concur.

Instruction.

Saunders v. Hackley & Hume Co.

DANIEL G. SAUNDERS, SR., et al., Appellants, v. HACKLEY & HUME COMPANY, LTD., et al.

Division One, June 4, 1918.

1. GARNISHMENT: No Indebtedness to Defendant. No judgment can be rendered against garnishees unless it appears that at the time of the service of the writs they were in possession or custody of money or property or effects belonging to the defendant or were indebted to defendant.

2.

3.

-: Voluntary Transfer of Assets. Even if defendant corporation was at the time indebted to plaintiff, as made manifest by subsequent suit, though no claim had previously been made, a voluntary transfer of negotiable bonds and notes in the form of dividends to stockholders, is not presumptively fraudulent in law nor voidable, if defendant owed nothing except plaintiff's claim and retained sufficient property to pay said claim.

Burden of Proof. The burden rests upon the interpleading stockholders of defendant corporation to prove that, at the time of the voluntary transfer to them, as dividends, of negotiable bonds and notes payable to defendant, the defendant retained sufficient assets to pay plaintiff's claim; but having established that fact by showing that defendant still owns property far in excess of plaintiff's claim. and that there was no actual fraud, the writs of garnishment must be dismissed.

Appeal from Jackson Circuit Court. Hon. William O. Thomas, Judge.

AFFIRMED.

Rees Turpin for appellants.

(1) The transfer of the notes and bonds in question was voluntary, that is, it was without consideration. (2) The circuit court erred in holding as a matter of law that the voluntary conveyances shown by the evidence will not operate to hinder or delay creditors. Star v. Penfield, 166 Mo. App. 302; Walsh v. Ketchum, 84 Mo. 427; Clark v. Thias, 173 Mo. 628; Crowe v. Beardsley, 68 Mo. 435; Payne v. Stanton, 59 Mo. 158;

Saunders v. Hackley & Hume Co.

McCollum v. Crain, 101 Mo. App. 522; Hoffman v. Nolte, 127 Mo. 120; Eddy v. Baldwin, 32 Mo. 369; Van Deventer v. Goss, 116 Mo. App. 316; Scharff v. McGaugh, 205 Mo. 344; Harding v. Elliott, 91 Hun. 502; Baker v. Lyman, 53 Ga. 339; Church v. Chapin, 35 Vt. 221; Botsford v. Beers, 11 Conn. 369; Walther v. Null, 233 Mo. 104; Johnson v. United Rys. Co., 247 Mo. 326; National Tube Works v. Machine Works, 118 Mo. 365; Shields v. Hobart, 172 Mo. 491. (3) The plaintiffs were existing creditors at the time of the last distribution of assets. (4) The circuit court erred in holding that there is no evidence in this case of fraudulent intent. Ross v. Crutsinger, 7 Mo. 245; Mosby v. Commission Co., 91 Mo. App. 500; Bank v. Russey, 74 Mo. App. 651; State to use v. Mason, 112 Mo. 374; Cole v. Cole, 231 Mo. 236; Spengler v. Kaufman, 46 Mo. App. 644; Bank v. Keeney, 154 Mo. App. 285; Reed v. Pelletier, 28 Mo. 173; State to use v. O'Neill, 151 Mo. 67.

Massey Holmes for garnishees, respondents; Holmes, Holmes & Page for interpleaders, respondents.

(1) It was proper to grant a new trial since the cause should not have been submitted to the jury at all. Lynch v. Turrish, 236 Fed. 653. 2 Cook Corporations. (6 Ed.), sec. 545, 7 R. C. L. p. 294; 2 Cook Corporations (6 Ed.), sec. 541, 7 R. C. L. p. 295; McLaran v. Planing Mill Co., 117 Mo. App. 40; Gentry v. Field, 143 Mo. 399; Bump on Fraudulent Conveyances (2 Ed.), pp. 34, 21; 12 R. C. L. pp. 536, 593; Welch v. Mann, 193 Mo. 304; Coleman v. Hagey, 252 Mo. 135.

BOND, P. J.-I. The plaintiffs sued Hackley & Hume Company, Ltd., a corporation, organized in 1903, under the laws of the State of Michigan, for the sum of $94.894.22, claimed as a commission on a sale of a tract of timber land in Louisiana, which was sold and conveyed to defendant on April 1, 1910, to the Delta Lumber Company, a subsidiary company of its guarantor, the Central Coal & Coke Company.

Pleadings.

Saunders v. Hackley & Hume Co.

Upon the institution of the suit by plaintiffs, an attachment was awarded, whereunder writs of garnishment were executed upon the Delta Lumber Company and the Central Coal and Coke Company. These garnishees denied the possession or custody at the time of the service of writs upon them, of any money, property or effects belonging to Hackley & Hume Company, Ltd., the defendant in the suit brought by plaintiffs for commission as above stated,

The Delta Lumber Company further answered that prior to the service of the garnishment, to-wit, about April 1, 1910, it delivered $350,000 of its first mortgage five per cent bonds, payable to bearer, to the Hackley & Hume Company, Ltd., all of said bonds maturing from March 1, 1920, to March 1, 1927, bearing interest coupons payable semi-annually, and that on the same date (April 1, 1910) it gave to defendant twenty-four negotiable promissory notes aggregating $1,550,000, maturing serially each successive six months thereafter, and bearing five per cent interest payable semi-anually.

This garnishee also averred, on information and belief, that none of these first mortgage bonds, nor interest notes, was, at the time of the garnishment, either owned or held by the defendant, but had been previously assigned, delivered and transferred, specifying the name of the transferees.

The Central Coal & Coke Company answered similarly, with the further averment that it had guaranteed the payment of the promissory notes executed by the Delta Lumber Company.

Interpleas were filed by the persons named as interpleaders, setting up title to the respective portions of the notes and bonds of the Delta Lumber Company claimed by such interpleaders.

Plaintiffs denied the answers of the garnishees and made answer to the claims set up by the interpleaders, in both of which pleadings plaintiffs averred that if there had been any assignment of the notes and bonds given to the defendants by the Delta Lumber Company, it was voluntary and fraudulent.

Saunders v. Hackley & Hume Co.

Upon the trial the jury found that the garnishees were indebted to the defendant, the Hackley & Hume Company, Ltd., in the sum of $1,805,000 and $350,000, the latter evidenced by the bonds of the Delta Lumber Company. The jury also found in favor of the plaintiffs against the claims of the interpleaders.

After a judgment in accordance and reserving jurisdiction, the garnishees and interpleaders filed motions for a new trial, which were sustained, in a written memorandum by the learned trial judge, on the theory that upon the undisputed facts, which were set out in the pleadings of the garnishees and interpleaders, no case was made for a jury.

II. The facts are that the Hackley & Hume Company, Ltd., was a Michigan corporation which acquired certain timber lands in the State of Louisiana, which it held for sale, and distribution of proceeds among its stockholders; that its capital stock was $1,The Facts. 200,000, all paid in cash; that after the death of Mr. Hackley in 1905, who owned three-fourths of the shares of the company, which passed by his will, the direc tors concluded to liquidate the company's assets and distribute the proceeds of the sale of its lands among its stockholders; that the corporation had no operating expenses and was not indebted, at the date of the trial, unless as claimed in the suit of plaintiffs; that these distributions were in the form of dividends; that upon the sale, in April, 1910, of certain lands in the State of Louisiana, to the Delta Company and the payment of the purchase price in the form of bonds and notes of that company to the Hackley & Hume Company, Ltd., the latter company distributed these, on June 13, 1910, in the form of a dividend to its shareholders by resolution of its board of directors duly entered upon its corporate records; that a large amount of the securities. (bonds and notes) went into the trust funds created by the will of Mr. Hackley and the will of his widow, and the remainder to stockholders of the defendant or their assignees. It was admitted that the interpleaders,