64 Mo. App. 388 | Mo. Ct. App. | 1896
This cause is replevin and was tried by the court, without the aid of a jury, and a judgment rendered for plaintiff. It appears that plaintiff held the property under a chattel mortgage from one Mattie Soper, and that shortly after he took possession under the mortgage, the defendant sheriff seized it under a writ of attachment, issued in a suit in behalf of a creditor of said Mattie Soper. The mortgage was given to secure to plaintiff the payment of three promissory notes, of uneven dates, but which were, in fact, all made on the day of the execution of the mortgage, viz., April 26, 1893. Two of these notes were for $250 each, and the remaining one for $400. The court found that one of the notes' for $250 and the note for $400 were fictitious and represented no real transaction between plaintiff and Mattie Soper, but were concocted and inserted in the mortgage for the purpose of hindering and defrauding her creditors. The court further found that the remaining note of $250 was not fraudulent, but represented a valid indebtedness to plaintiff.
The court thereupon rendered judgment to the effect that plaintiff had an interest in the property to the amount of the valid- note and interest. We think this was error. The rule in this state is, that where a part of the consideration for a chattel mortgage is fraudulent in fact, it vitiates the whole mortgage. Cole v. Yancey, 62 Mo. App. 234; Boland v. Ross, 120 Mo. 208; State ex rel. Robertson v. Hope, 102 Mo. 410. In such case the' fraudulent mortgagee can not com
It is contended that as the indebtedness set forth in this mortgage is represented by separate notes, and that since the whole of one of these notes was valid, and the good could be separated from the bad,' therefore the judgment was proper. This will not do. The contest here is over the property attached and does not involve the indebtedness, except incidentally, in order to attack the validity of the lien on the property: Plaintiffs’ claim on the property is through a mortgage, an entire thing, incapable of separation; and it is the mortgage which we declare to be vicious, by reason of securing debts, a part of which are fraudulent and known to be so by the mortgagee creditor. The cases of Hardcastle v. Fisher, 24 Mo. 70, and Pinneo v. Hart, 30 Mo. 561, cited by plaintiff, have no application to the facts here, since in those cases the creditors were not participants in the fraud.
We will reverse the judgment and remand the cause, with directions to render judgment for the defendants.
