43 Mo. App. 644 | Mo. Ct. App. | 1891
Lead Opinion
This was an action of replevin to recover the possession of a span of mules. The evidence adduced at the trial tended most- strongly to show that plaintiff was the- owner of two young and unbroken mules ; that Henry Blount, a son of plaintiff, took the mules to break and use .until the plaintiff should want them; that Henry took the mules to his own place, and then broke and used .them for five or six years and until his death in 1888 ; that several witnesses testified to statements made by Henry to each of them at various times and up to within a few months preceding his death to the effect that the mules were the property of the plaintiff. This is not contradicted by any other testimony. It seems that after the death of Henry, and on the day of his burial, the plaintiff had a conversation with James Shephard, who afterwards became the administrator of Henry’s estate, in which she remarked, “Mr. Shephard, you know I have a pair of mules at Henry’s,” and he replied, “ Yes.” She then said, “ Will you take the mules over to your place, fix them up, sell them for me, and I will pay you whatever is right for your trouble?” Shephard said he would do that after the
I. The statute in relation to fraudulent conveyances, section 5173, Revised Statutes, 1889, provides that when any goods or chattels shall be pretended to have been loaned to any person with whom, or those claiming under him, possession shall have remained for the space of five years without demand made, and pursued by due process of law on the part of the pretended lender, or when any reservation or limitation shall be pretended to have been made of any use of property, by way of condition, reservation or remainder, or otherwise, in goods or chattels, the possession whereof shall have remained in another, the same shall be taken, as to 'all creditors and purchasers of the person so remaining in possession, to be void, and that the absolute property is with the possession unless such loan, reservation or limitation of use of property was-declared by will or deed in writing, proved or acknowledged and recorded as required by section 2499. ■
The death of Henry Blount, the loanee of the property, operated as a revocation of the loan. Story on Bailment, sec. 277, The evidence shows that the plaintiff, by her agent Shephard, took possession of the property so that it was never lawfully in the possession of the administrator. His possession, and that of his vendee, was tortious. But, however this may be, the defendant purchasing at the administrator’s sale was in no sense “a creditor or purchaser of the person so remaining in possession.” This statute cannot for that reason be invoked by the defendant to uphold his claim to the property. The cases cited by the defendant: Cook v. Clippard, 12 Mo. 245; Nyson v. Rogers, 24 Mo. 192, were where the loanee had sold the property, and the
The plaintiff’s right to the possession of the property as against the defendant did not depend upon whether she had the possession after the death of Henry Blount or not. The defendant is in no better situation than the administrator as respects the title to the property — the latter had no title to pass to defendant by sale. The mules in controversy were not assets in the hands of the administrator within the well-established meaning of that term. Assets consist of all those goods and chattels which were of the deceased in right of action or possession as his own and so continued to the time of his death, and which after his death the administrator gets into his hands as duly belonging to him in right of his administratorship. Williams on Executors, 1656. How can the defendant claim the benefit of the statute, when he is not within its terms, being neither a creditor of the loanee during his lifetime, nor of his estate, nor a purchaser of him % The death of Henry Blount put an end to the relation of bailor and bailee. It extinguished the bailment. There wTas neither bailor nor bailee. There is no such thing as the relation of bailor and bailee being created between plaintiff and the administrator by operation of law. Before the statute can apply in any case there must ex necessitate rei be a bailee in
There was, therefore, no error in the rulings of the court below in respect to the giving and refusing instructions. The defendant contends that the court erred in rejecting his offer to prove that the deceased while in the actual possession of the mules claimed to hold them as owner. We cannot see that the rejection ol this offer was injurious to the defendant, in view of the concurrent testimony of nearly all the witnesses to the fact that he again and again declared that the property was that of plaintiff, and that he was using it, and in possession as a loanee. Such declarations of deceased, if proven, would have very little, if any, probative effect to destroy the declarations he had made to the witnesses against his interest. The declarations of a party may in some cases be received in evidence- to characterize his possession of property. So, too, the declarations of a party in possession of personal property against his title are admissible, but declarations by him on other occasions, in support of his title, are not admissible, even in rebuttal. Criddle's Adm'r v. Criddle, 21 Mo. 522.
No error is perceived in the record materially affecting the results. The judgment should be affirmed.
Concurrence Opinion
I cannot concur with, the foregoing opinion by Judge Smith. In the first place the presiding judge is in error in assuming, as an incontrovertible fact, that the plaintiff after the death of her son took possession of the mules. The evidence on that point is conflicting, as inspection of the record shows. Indeed, it seems to me that the preponderance is rather in favor of defendant’s contention, to-wit, that Shephard, the administrator, took possession only as the representative of the deceased son, and not, at any time, as the agent of the plaintiff.
Moreover, I do not agree with the views of the learned judge as to the law of this case as set out in his opinion. In effect, it is there held that though Henry Blount, for the period of six years before his death (as the evidence tended to prove), had the continuous possession of the mules under a loan from his mother, the plaintiff; and though at Henry’s death Shephard the administrator took and continued that possession till a sale was effected to defendant Hamey, yet that the defendant is not such a purchaser as was intended to be protected by section 5173, Revised Statutes, 1889. It seems that such a construction of this section of our statute of fraudulent conveyances is too narrow, and one not calculated in many cases to give effect to its beneficent provisions. In the construction of such statutes it is the policy of the law to expound the same liberally — according to its spirit rather than a tenacious clinging to the word. Wait on Fraud. Conveyances, sec. 20; 2 Bigelow on Fraud, p. 115. The obvious intent of section 5173 was to protect creditors and purchasers from pretended and fraudulent loans. In cases where the lender gives possession of the chattels to the loanee and permits him to retain such possession for five years, the law assumes that such loanee
In my opinion Smoot v. Wathen, Adm’r (8 Mo. 522), and Criddle’s Adm’r v. Criddle (21 Mo. 522), have no bearing on the question at issue here. In both those cases the administrator of the deceased loanee sought to claim title of the property loaned as against the lender; and it was held that, while the loan accompanied by five years’ possession would be void as to purchasers and creditors, yet such loan was valid as between the parties to the loan, or as between the lender and the administrator of the loanee — that the administrator of such loanee could not, as representing the creditors of his intestate, impeach the title of the lender. Because the administrator of the loanee then cannot, avail himself of this provision of the statute to defeat the lender’s title, it does not follow therefrom that a purchaser from such administrator cannot. Neither is it correct to say that, as the administrator has in fact no title as against the lender, therefore, a purchaser from the administrator can acquire no title. For that matter the original loanee has no title as against the lender, ■ whatever may be the duration of his possession ; yet if the loanee, after five years’ possession, shall sell the property to a third person, such party acquires the absolute title as against the lender. • So then it is immaterial what may be the rights of lender and loanee as between themselves.
