| Mo. Ct. App. | Nov 28, 1899
Respondent brought suit by attachment 'against the Grant Quarry Company and summoned James R. Kinealy as garnishee of said company. The garnishee, in his answer filed herein, admits that the Grant Quarry Company conveyed to him certain personal property on June 8, 1898, and contends that he holds the said property so conveyed and transferred to him by the Grant Quarry Company, in trust for the purposes and objects set forth in said deed of conveyance, while plaintiff, in its reply, contends that said deed of trust is fraudulent in law and void as to attaching creditors, and that its fraudulent character appears from the face of the deed itself. ' It was shown at the trial that said deed of trust conveyed to said garnishee all of the property of the Grant Quarry Company, and that the personal property thereby conveyed, was of the value of several thousand dollars. The deed of trust was executed and recorded on June 8, 1898. It conveyed to the trustee four pieces of real estate and numerous articles of personal property, consisting in part of steam engines, boilers, drills and quarry tools. The deed was made to secure the payment of a large number of open accounts and promissory notes, the latter aggregating $15,874.24. The conditions of the trust, so far as they affect this case, are as follows: “If default be made in the due fulfillment of said
“In case of the sale of said real estate the said party of the second part shall sell same, or such part thereof as he may deem necessary * * *.
“After said party of the second part shall have taken possession hereunder of the property hereby conveyed he shall expend such sums as he may deem necessary to collect said accounts and choses in action and to maintain and preserve said real and personal property, and to put same in good condition for sale, and if he deems it advisable he shall continue the business and operations of said party of the first part until this trust shall have been executed, or for such time as shall be necessary to prepare said property, or any part thereof, for sale. And if at any time during the continuance of this trust, the said party of the second part deems it advisable to quarry any rock from the premises hereby conveyed, ór to employ any labor or purchase any material or things in order to put the property hereby conveyed in good shape or condition for sale, or to rent any premises or office for occupancy, by him, he shall have power to do so and the expense thereby incurred shall be part of the expense of executing this trust. And in the execution of this trust and the powers hereby conf erred the said party of the second part shall have full power and authority to employ such agents, clerks and laborers as he shall deem necessary, and the expense thereof shall be part of the expense of executing this trust * * *.
The issues were submitted to the court sitting as a jury. After reading the deed of trust, respondent introduced -a witness, who testified that the value of the personal property described in the deed of ¡trust was about $6,000. Respondent admitted that all the debts secured by the deed of trust were bona fide. Appellant offered no evidence, but moved the court to declare the law as follows:
(1) “The court declares the law to be that on the evidence in this case the plaintiff is not entitled to recover, and the finding and judgment must be in favor of the defendant garnishee.”
(2) “The court declares that this case is submitted to ■the court by the plaintiff to be decided in favor of the garnishee, unless the court must declare that, as a matter of law, the deed of trust executed by the Grant Quarry .Company to James R. Kinealy, trustee and read in evidence in this case, is and was, at the date of its execution, absolutely void as to the creditors of said Grant Quarry Company.”
(3) “The court declares the law to be that ithe court can not, from a mere inspection of the deed of trust executed by Grant Quarry Company to James R. Kinealy, trustee, and .in absence of evidence as to the character of the business and operations therein referred to and the circumstances and condi
These instructions the court refused to give. Respondent asked no instructions, and none were given by the court of its own motion. The finding and judgment were for plaintiff, from which after an unsuccessful motion for new trial defendant appealed.
The contention of respondent is, that the deed of trust is fraudulent, and that the fraud is apparent on its face, because it vests the trustee with power to carry on the business of the Grant Quarry Company, as long as he sees fit, and because it leaves to the trustee the right to fix the time, terms and place of sale of the personal property conveyed by the deed. The deed permits and authorizes the trustee, if he deems it advisable, to continue the 'business of the Grant Quarry Company indefinitely and until the trust shall have been executed. He might, or might not continue the business; he might or might not execute the trust — both are left optional with him. He is permitted by express grant of power to rent an office, to quarry rock from the premises conveyed, and to employ labor, and to charge the expense to the trust; no time is fixed for the sale of the personal property, nor terms of sale; both are left to the discretion of the trustee. Hnder the conditions of the trust the trustee might say to the officers of the Grant Quarry Company: “Gentlemen, as trustee, I reemploy you at your old salaries; proceed to carry on the business of the corporation as héretofore; the old scale of wages will be in force; employ what labor you need; make what contracts you deem advisable, only be careful to do all the business and make all the contracts in my name as trustee, and I will stand between the company and its creditors and hold the latter at bay until such time as you and I may agree to execute the trust. ”That such a contrivance is fraudulent in law, needs no