
    Badgett vs Johnston-Fife Hat Co.
    Opinion delivered January 30, 1897.
    
      r. Assignment for Benefit of Creditors — Possession by Assignee Before Bond Filed — Fraiid.
    When it is admitted that an assignee took possession before filing his bond and inventory, an instruction that if the assignee and assignor agreed, at the time of the delivery of the deed, that the assignee should take possession of the assigned property before filing his inventory and bond, the deed of assignment is void, is not erroneous.
    
      \ Instruction — Fraud.
    An instruction that the deed of assignment was valid unless some fraud on the part of the assignor, participated in by the assignee, either at the time of or prior to the execution of the deed, was properly qualified by defining the fraud necessary to avoid the deed.
    . Testimony — Delivery of Keys.
    
    Testimony relating to the delivery of keys to the assignee contemporaneous with the delivery of the deed is proper to establish possession by the assignee of the assigned property ‘before filing inventory and bond.
    Appeal from the United States Court for the Northern' listrict.
    William M. Springer, Judge.
    Suit in attachment by Johnston-Fife Hat Company gainst J. D. Blosser. W. R. Badgett, as assignee of Blosser, iterpleaded. Judgment was rendered in favor of plaintiff ud the interpleader appeals.
    Affinhed.
    Appellee sued one J. D. Blosser to recover a debt of 312.30, and procured and levied a Writ of attachment upon certain merchandise, as the property of said Blosser. Appellant interpleaded in the action, claiming to be the owner of the property attached, by virtue of a deed of assignment executed by Blosser to him prior to the levy of the writ of attachment. The trial on the interplea resulted in a verdict and judgment against the interpleader, from which he pro secutes this appeal. The issue presented by the evidence was whether, pursuant to an agreement or únderstandingj between the assignor and assignee, contemporaneous wit' the execution and delivery of the deed of assignment, tb assignee took possession of the assigned property befor' filing the inventory and bond required by law. The cour instructed the jury upon this issue as follows: “(1) Tb court instructs yon that, although there is a clause in tb deed of assignment offered in evidence in this case whin prohibits the assignee from taking charge or control of tb property assigned until he had filed his inventory and bon as the law provides, 'yet if you believe from the evidence i: this case that at the time the assignor, Blosser, delivered tb deed of assignment to the assignee, Badgett, that he and tb assignor entered into an agreement or understanding b; which the assignee was to take possession of the assigne' prbperty before he filed his inventory and bond, and that tb assignee, in pursuance of such understanding, did tab charge of said property, either by himself or agent, befor' he filled his inventory and bond, that such acts would rende the assignment fraudulent and void in law, aud you shoub find for the plaintiff or attaching creditor. And in dete: mining whether or not there was such an agreement o| understanding between the assignor, Blosser, and the a: signee, Badgett, you have a righo to take into consideratio: all the facts and circumstances surrounding the case; and you believe from the evidence, and all the circumstances su: rounding the case, that there was such an understand™ you will find for the plaintiff or attaching creditors. ( The court instructs the jury that the deed of assignment offered in evidence in the case is valid on its face, and vested the legal title to the property in controversy in this suit in the assignee named therein, and the interpleader herein, W. R. Badgett, unless some fraud in law, either express or implied, on the part of the assignor, J. D. Blosser, prior to or contemporaneous with the execution of the deed, known to md participated in by the assignee, W. R. Badgett, invali-lated it. If, therefore, the assignment in question was free from fraud, either express or implied, at the time of its execution and delivery, no subsequent agreement between the assignor and assignee to disregard it, and no subsequent fraudulent acts on their part with respect to the assigned property, .will invalidate it. (3) The court instructs you that fraud may be proven by circumstances, and, in determining what constitutes fraud, you have a right to consider all the ividence and circumstances in the case, and from them determine the question of fraud. ” The second paragraph of ;he court’s charge was requested by appellant, without the talicized words therein. To the refusal of the court to give ;he charge as asked, and to its action in giving the charge as nodified, exception was taken. Exception was also reserved ;o the first paragraph of the court’s charge.
    Testimony that the keys to the store were delivered to issignee at the time of the delivery of the deed was admitted >ver the objection of appellant.
    
      Hutchings and English, for appellant.
    This case is in all respects similar to the case of bowler vs Blosser, 1 Ind. Ter. 36, except that the instruc-ions contain some additional phraseology which render them ¡rroneous. Hill vs Woodbury, 49 Fed. 138; Lowenstein vs Finney, 54 Ark. 154; Goodwin vs Kew, 60 Mo. 276. The Bury cannot imply fraud. Wait on Fraud. Con. § § 9, 10; Bump pn Fraud. Con. pp 22-25.
    
      Instruction.
    Assignment ior Creditors. Agreement for Possession
    
      W. B. Maxey, Geo. B. Denison, John B. Tiurner and James B. Burclchalter, for appellee.
    It is immaterial whether an agreement for possession or a delivery of possession be with fraudulent intent or not. 1 Ind. Ter. 36; Goodbar vs Mears, 13 S. W. 515; Rice vs Frazier, 24 Fed. 460; Aaronson vs Deutsch, 24 Fed. 465; Smith vs Patterson, 57 Ark. 537; Gilkerson-Sloss Com. Co. vs London, 53 Ark. 88.
   Lewis, J.

(after stating the facts). 1. This case is, in all respects, similar to the case of Fowler vs Blosser Ind. Ter. 36; 35 S. W. 247. The court, in the first paragraph of its charge, gave a statement of the law which was approved as correct and applicable to the evidence in that case. The assignment of error based upon the giving of this instruction will not, therefore, be further considered. It is true, the court, in the conclusion of this paragraph, limited the consideration of the jury to the question whether there was an understanding of the assignor with the assignee for possession by the latter of the assigned property before filing inventory and bond; but, as the fact of possession by the assignee before the filing of his inventory and bond is undisputed, there was no error in the action of the court in this respect.

2; The sole issue raised by the proof is whether or not there was an agreement between the assignor and the assignee, contemporaneous with the execution and delivery of the deed of assignment, by which the assignee was to have possession of the assigned property prior to filing his bond and inventory. If there was such an agreement, followed by such possession, the assignment is void, whether the intention of the parties to such an agreement or understanding was fraudulent in fact or not. Such agreement and possession vitiate the assignment, because prohibited by law. If they exist, it is enough to produce this result, without more. It is true, these facts are sometimes said to constitute fraud upon the law, and sometimes fraud in law. This, however, is a matter of expression. The material inquiry in cases like the present is, do these facts concur? If so, they avoid the assignment, whether they be termed-‘imputed fraud,” “constructive fraud, ” “fraudin law,” or ‘ ‘fraud upon the law. ” The charge requested by the appellant, while correct in general terms, was abstract, and calculated to mislead the jury by the use of the word ‘ ‘fraud,’ ’ which, alone and unexplained, implies to the popular mind the idea of acts done with intent to cheat or overreach. For this reason the court properly refused the charge as asked. The instruction, as modified and given, is open to the criticism that its phraseology is not apt; but, taken in connec-;ion with the other parts of the charge, we think it presented ;o the jury the idea of fraud resulting in law from an agree-nent expressly proven, or implied from circumstances! vhich, when followed by possession, is adequate to overturn he deed. Believing that the jury were not misled as to the ssue they were to pass upon, the defects in this instruction rising from the inexact use of technical language will be lisregarded.

competent-, -

3. The testimony Objected to was admissible to stablish possession by the assignee of the assigned pro-erty before the filing of his inventory and bond, and ertinent to the issue whether such possession was the re-ult of an implied agreement or understanding had at the me of the execution of the instrument. In the light of the ecisions of the state from which we get our assignment bw, we are unable to say that the evidence was insufficient ) support the action of the jury in finding such an agree-ent. Smith vs Patterson, 57 Ark. 537; 22 S. W. 342. The idgment is affirmed.

Kilgore, J., concurs.  