First National Bank v. Kansas City Lime Co., 43 Mo. App. 561

First National Bank v. Kansas City Lime Co.

43 Mo. App. 561 | Mo. Ct. App. | 1891

Lead Opinion

Ellison, J.

Plaintiff instituted an attachment suit against defendant, and had levied upon personal property, which was claimed to be owned by P. C. Hall, who filed his interplea for the property.. He was defeated below and appeals here.

It appears from testimony of interpleader that the Lime Company owed him $1,500, and that he had indorsed notes of the company to the amount of several thousand dollars, some of which he after-wards paid ; that, in order to save his debt, and to secure himself as indorser, he bought the property, a portion of which was attached and is in dispute, and paid therefor with the debt owing him and assuming the payment of the notes he had indorsed for the company. He took an absolute bill of sale as well as possession of the property.

The plaintiff claims that the sale was made for the fraudulent purpose of hindering and delaying creditors, and that interpleader participated in that purpose.

There was testimony tending to sustain the theory of either party, and we will, therefore, only consider the instructions.

The principal objections urged here by interpleader refer to modifications of instructions which he asked, and which were given in the modified form. These modifications consisted in additions, submitting the hypothesis of interpleader’s participation in the fraudulent design to defraud, hinder and delay creditors, and when we consider them in connection with the whole case, we cannot see how any substantial injury could have resulted..

Nor has the interpleader any ground of complaint of the instructions asked by, and given for, plaintiff. They, imposed conditions against plaintiff not called for by the case. They directed the jury that if they find that at the time of the execution of the bill of sale *565there was an understanding and agreement between Hall and the Lime Company that the sale was not to be absolute, but that the company was to have the property back, after Hall’s claims were satisfied, and that such agreement was not incorporated in the bill of sale, that, in such case the conveyance was fraudulent as to creditors, unless at the time of the levy of the attachment the interpleader was in open and exclusive possession. There was no legal basis for allowing possession to operate against the attachment, if the bill of sale was absolute and yet there was a secret understanding that it should not be so treated by the parties. In such case we are not able to see how possession would aid the vendee.

So, by instruction, numbered 6, given for inter-pleader, the jury are told that, notwithstanding the absolute bill of sale, and the outside understanding that the property was to be turned back to the Lime Company when Hall’s debt was paid, yet, if Hall took the property and accepted the transfer thereof, in good faith to secure the indebtedness to him, they should find for interpleader. This was more than interpleader was entitled to. His taking possession of the property or his acting (in point of fact) in good faith, would not aid him in such case. He took a bill of sale from the Lime Company, which said to the world that he was the absolute owner of the property. He has prosecuted this case on that theory. If it is true that the interpleader held himself out to the world as the absolute owner, and yet at the same time he was under an agreement embodying a secret trust, the purity of his intentions cannot alter the legal results following such condition. The principle we are here enforcing was discussed at length in the opinion of Gill, J., in the case of Molaska Mfg. Co. v. Steele & Walker, 36 Mo. App. 496, and what we have said is fully sustained by that case. The cases of McIntosh v. Smiley, 32 Mo. App. 125; State to use v. Brewing Co., 32 Mo. App. 281; Knoop v. Dist. *566Co., 26 Mo. App. 303, are not in point. We can discover nothing which would justify us in disturbing the finding of the jury, and, therefore, affirm the judgment.

All concur.

Rehearing

ON MOTION FOR REHEARING-.

Ellison, J.

We are of the opinion that upon the statutory interplea being filed claiming title to attached property, under a general denial by plaintiff, he may show interpleader’s claim to be fraudulent and, therefore, no title. It has been frequently stated by this court and the supreme court, that an interplea may be termed an action of replevin grafted on the attachment law. In all such cases the question here has been ruled upon adversely to interpleader’s contention. Springer v. Kleinsorge, 83 Mo. 152, 156; Greenway v. James, 34 Mo. 326. The cases of Reed v. Bolt, 100 Mo. 62, and Smith v. Sims, 77 Mo. 269, cited by interpleader, are cases in equity. At law, the rule in this state is different. Edgell v. Sigerson, 20 Mo. 494; Fox v. Webster, 46 Mo. 181.

We do not see anything of merit in the other points made in support of the motion, and it is, therefore, overruled.