Attaway v. Hoskinson

| Mo. Ct. App. | May 21, 1889

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiffs prosecute this appeal from an order of the circuit court, directing the assignee in the distribution of the proceeds of the sale of certain personal property, on which the plaintiffs, and other parties named in the order of distribution hereinafter referred to, claim conflicting liens. The question for decision is one touching the order of priority of such liens, and is to be determined upon the following statement of facts which were agreed to in the trial court.

The plaintiff, Julia E. Attaway, was the owner of a hotel building in Lebanon, Missouri. On January 21, 1888, she made a lease thereof to one Roberts, which provided, among other things, that the furnishing in said hotel should be bound and subject to the payment of the rent reserved. ■ This lease was not recorded until October 24, 1888. On October 23, 1888, Roberts made a general assignment to the defendant Hoskinson for the benefit of all his creditors, and the deed of assignment was recorded that day. Hoskinson knew that there was a lease, but did not know of its contents. Prior to that time, four judgments were rendered against Roberts, bearing dates respectively, July 21, September 1, October 13, and September 29, 1888. Executions were issued on these judgments, and were placed in the hands of the constable of Lebanon township, where the property was situated prior to October 24, but no actual levy on the property was made until after the recording of the lease mentioned. Subsequent to the assignment, one White brought an action for the purchase money of some of the furniture in the hotel, and obtained judgment on November 3, 1888. There is due to the plaintiff for rent, under the lease, $396.12, but what portion of such rent accrued prior, and what portion subsequent, to the assignment does not appear. One Wallace had a mortgage on the property, which is conceded to be entitled to priority over the plaintiffs’ claim for rent.

The court, upon this showing, determined the priorities as follows: First. The mortgage of Wallace. Second. The judgment of White. Third. . The four other judgments rendered prior to October 24. Fourth. The plaintiffs’ claim, and those of other creditors, pro rata. The court also adjudged that the plaintiffs pay the costs. Prom this order the plaintiffs appeal.

We must observe at the outset, that there is nothing in the record to show that the property assigned by Roberts and its proceeds are insufficient to pay all the creditors in full. The plaintiffs assert in their statement filed in this court, that the assets are insufficient to pay anything beyond the third-class claims, but it would seem, that, as we cannot reverse a judgment except for prejudicial error, it is incumbent upon the appellants affirmatively to show by. the record, that they were aggrieved by the judgment of the court. Their case in that respect rests solely on the assumption that one who makes a general assignment is presumed to be insolvent.

However this may be, the plaintiffs’ claim must fail on more substantial grounds. ' We concede that the reservation in the lease was equivalent to a mortgage. Wright v. Bircher, 72 Mo. 179" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/wright-v-birchers-8006563?utm_source=webapp" opinion_id="8006563">72 Mo. 179. As between the parties themselves, it was equivalent to a mortgage on everything which it was intended to cover; as to third persons it was a mortgage only on what it did cover by its express terms. The reservation is on the furnishing of the hotel, and there is no evidence whatever in the case that that term, by general usage in the community, means furniture, much less that it means furniture, utensils and personal property of all kind used in connection with a hotel, and which forms a part of the property assigned. The deed of assignment describes the property in detail, and not by the term furnishing. Webster does not recognize the existence of such a noun at all, while Worcester speaks of it as meaning a sample. How could the court without the aid of evidence, giving to the term used a generally accepted meaning in. the community, declare that the mortgage covered the property assigned or any part thereof? The term used is too indefinite to cover any specific property, as no person could by aid of the mortgage, with such*inquiries as'the instrument itself suggests, identify the property conveyed.

Additional questions arise upon the record, as to whether the liens of the four judgments attaching to the-property prior to the recording of the lease are not entitled to priority over the .lien reserved in the unrecorded lease. On these questions we desire to express no opinion. The plaintiffs’ claim must fail for uncertainty of description of the property on which the lien is reserved.

All the judges concurring,

the judgment is affirmed.