Page:Federal Reporter, 1st Series, Volume 9.djvu/502

 SMITH V. SCHWED. 487 �would have received the money due him, and could have given it to his sister if so disposed. Wliy, then, did they all exert themselves bO zealously to prevent competition and have all the goods struck oii to Heller at low priees? Evidently, because it was their purpose to divest Schwed & Newhouse of their title, without, in fact, depriving them of the stock or bfeaking up their business. The judgment and sale were to be effectuai as against creditors, but, for all other pur- poses, the business -was to go on. It is impossible to believe that all this circumlocution was resorted to for the sole purpose of enabling Heller to make a present of the stock to his sister. If he believed Schwed & Newhouse were solvent, why did he ^not take the goods from them directly inpayment for his debt? If they were willingto aid him to obtain the stock by confessing judgment and preventing competition at the sale, they would, of course, have been willing to turn out goods directly to him in payment. By this simple arrange- ment a large expenditure for costs would have been saved, and only creditors could have raised any valid objection to it. It is clear to my mind that Heller knew, or, at least, suspected, that Schwed & Newhouse were indebted, and that he combined with them, under cover of a judgment, execution, and sale, to transf er title to Mrs. Schwed before any of the creditors could be informed. �The resort to the expensive legal proceedings shown in the evidence, when debtors and creditor were acting together in perfect harmony, can be aecounted for only upon this theory. I am strengthened in this view by the fact that there was great haste and apparent secrecy in the proceedings. Why, for example, if there were no other known creditors, was it deemed necessary to have the two judgments con- fessed iu different states on the same day, and to have executions immediately issued and levied on both stocks? Enough has been said to show the fraudulent character of the proceedings at Pitts- burgh; but it is earnestly contended that there is no suiScient proof of fraud in the judgment in Missouri, which is the judgment attached and sought to be set aside in this case. If I am right in the conclu- sion above stated, that the two transactions are so intimately con- 1 ected as that they must stand or fall together, then the badges of fraud to which I have called attention are fatal to both judgments. But there is proof tending strongly to show that the scheme which was carried out at Pittsburgh was attempted at Kansas City, and was unsuccessful only because the sale was enjoined. Here, as at Pitts- burgh, the goods were kept in a safe. As soon as the execution was placed in the hands of the sheriff, Newhouse, who was in charge of ��� �