60 Mo. App. 289 | Mo. Ct. App. | 1895
This is an action of replevin, in which plaintiff recovered below; the court giving a peremptory instruction in his behalf.
The facts of the ease are these: Y. Y. Morgan & Brothers was the name of a mercantile partnership at Warsaw, Missouri. W. L. Morgan & Company was the name of a mercantile partnership at Melton, a town about eighteen miles from Warsaw. The latter firm was composed of this plaintiff and the Morgan brothers, the latter alone composing the first firm. That is, the two firms were composed of the same men, except that plaintiff was a member of the firm of W. L. Morgan & Company and was not a member of the firm of Y. Y. Morgan & Brothers. Y. Y.' Morgan & Brothers sold, their stock of goods to W. L. Morgan & Company, in April, 1893, and immediately shipped them to Melton, where they were received by W. L. Morgan & Company. In the month of July following, the defendant, as sheriff, levied several writs of attachment on 'these and other goods in the possession of W. L. Morgan & Company, the attachment having been sued out by alleged creditors of V. Y. Morgan & Brothers and the goods seized thereunder as the property of the latter firm.
' We have stated that the purchase was made by W. L. Morgan & Company and that possession was delivered to them, and thakthe sheriff found them in possession when he made the seizure. We have thus stated it, for the reason that it seems to us that that is the way the evidence fixes it. This suit, however, is in the name of plaintiff only. Why he should have been made sole plaintiff, when it is clear that the property levied on was the property of the partnership of which he was a member, we do not know. The fact that he
The points presented here are that there was no open, exclusive, continuous and notorious change of póssession, such as is required by statute, and that, conceding there was such a change of possession, the sale itself was fraudulent, as against the creditors at whose suit the defendant sheriff seized the property.
We are satisfied that there was a sufficient change of possession established by the uncontradicted testimony. The goods were sold by V. V. Morgan & Brothers to W. L. Morgan & Company, and were taken from the town of Warsaw to the town of Melton; and whether the delivery to the latter firm was at Warsaw or at Melton will make no difference, since they were, at one place or the other, so delivered, and were kept in possession of the latter firm at Melton for several months prior to the attachments. That the two firms were not one and the same was unquestionably established. And, aside from the situation of the parties, and of the actual transfer of the property from one place to the othér, there was abundant evidence, which, when considered with these facts, conclusively showed that the change of possession was notorious and unequivocal, unléss the fact that the vendor firm and the vendee firm were composed in part of the same persons, can affect that question.
2. There is this further consideration which leads to an affirmance of the judgment, regardless of the foregoing. The whole case shows that W. L. Morgan & Company were in possession of the property at the time of the levy. The case further shows that there was, at least between the parties, a valid sale. If, then, the sale is to be held invalid, it must be for the reason that it has affected the rights of creditors of the vendor, for the statute is, that a sale, without compliance with certain provisions therein named, shall be void as to creditors. So, therefore, when a third person seeks to attack a sale, valid between the parties, he must show that he is a creditor, for otherwise it is no concern of his. He must be, not merely a general creditor, or creditor at large, but an attachment or judgment creditor. And if the question arises
This case is in replevin and the defendant sheriff is not only seeking defensively to justify the trespass in seizing the goods, but he claims the affirmative right to still hold them and demandé their return. He should therefore show that which we have stated to be necessary in such case, in order to confer upon him such right. Brown v. Bissett, 21 N. J. L. 46. Whether he could excuse himself in trespass by showing the debt and writ, without going further and showing the foundation for the writ, is, of course, not involved here. Defendant did not show these things which are requisite to his right to question the sale and for this reason, if for no other, the peremptory instruction will be upheld.
3. As before stated, the case shows an actual sale valid between the parties. But if it had appeared that there was, in fact, no sale, and that it was a device — a mere scheme whereby the pretended vendees were to
The result is that we must affirm the judgment.