80 Mo. 276 | Mo. | 1883
Plaintiffs sued Kerr by attachment in the
At the trial it appeared that after the assignment was executed and recorded, Watts proceeded to take an inventory of the goods, but before concluding it Kerr told Watts to discontinue it, as he, Kerr, had been badly advised to make the assignment, and thereupon Watts, an attorney, having advised the assignment, refused to act as assignee, and restored, if he in fact ever had, the possession of the goods to Kerr, who afterward, as before the assignment, soid them at retail and appropriated the proceeds of sales as he thought proper. This continued from about the 5th or 6th of August until the first attachment in this cause was issued. When that attachment was levied, Watts had refused to act and Scarritt had not been appointed in his stead, and Kerr was in possession.
It is unnecessary to make a detailed statement of the evidence, or to embody in this opinion all the instructions given and refused. Eor plaintiffs seven were given; fourteen asked by interpleader were refused, and four were given by the court of its own motion.
In the first and seventh given at the plaintiffs’ instance, the jury were told in substance that if Watts, the assignee, did not take actual possession of the goods, or if his possession was not visible, continued and exclusive against Kerr, the assignment was void, or if after the assignment and prior to the date of the attachment and before Watts had taken full control and management of said goods, or before Watts had filed his bond and completed an inventory of the goods it was agreed by Kerr and Watts that the assignment should be disregarded, and the possession and
It is first asserted that the retention of the goods assigned by the assignor after the assignment, is per se fraudulent and renders the assignment void. Second, that after an assignment is made with however honest an intent, the assignor and assignee may, by their fraudulent conduct with regard to the property, or by an agreement between them that the assignment should be disregarded and held for naught, followed by a surrender of the possession of the assigned goods by the assignee to the assignor, invalidate the assignment.
As to the first proposition Mr. Burrill, in his work on Assignments, says : “ The predominant rule in the United States appears to be that possession must accompany and follow a deed of assignment by a debtor and the possession of the assignor after the transfer, unless explained, will render the assignment void as against creditors.” 402, § 277. That “ possession is only prima fade and not conclusive evidence of fraud; and that it may always be explained so as to show the transfer to have been bona fide and upon sufficient consideration.” lb., 393, § 273. It must be conceded that this is the law in this State, unless our statute, (§ 10, Wag. Stat., 281,) is applicable to assignments. It provides that: “ Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, (regard being had to the situation of the property,) and be followed by an actual' and continued change of the possession of the things sold, shall be held to be fraudulent .and void as against the creditors of the vendor and subsequent purchasers in good faith.” If an assignment is included in the term “sale,” the instructions of the court on.this
Mr. Burrill in his work, states the distinction between a sale and an assignment. One important distinction “arises
The next question is, can an assignment free from fraud in its inception duly executed, acknowledged and recorded be invalidated by a subsequent agreement between the assignor and assignee to disregard it and hold it for naught, or by any fraudulent acts on their part with respect to the property assigned ? “Another rule (says Mr. Burrill) is, that the character of the assignment will not be affected by subsequent events, and if valid in its creation, no subsequent fraudulent or illegal acts of the parties can invalidate it.” In Gates v. Lebeaume, 19 Mo. 17, it was declared that the character of the assignment will not be affected by subsequent events, and, if valid in its creation, no subsequent fraudulent or illegal acts of the parties can invalidate it. The instructions presenting that view should have been given.
The court properly held that the conduct of the as-signee and assignor, subsequent to the assignment, was a matter for the consideration of the jury, in determining whether the assignment was fraudulent in its inception, and the evidence to prove it was admissible. We cannot refrain, however, from expressing the regret that the law is as we are constrained by authority to declare it. The case at bar shows how the rights of creditors may be utterly destroyed, by a fraudulent debtor and an assignee who is willing to aid him in his scheme to delay, hinder and defraud them. We would not be understood as intimating that Mr. Watts, the original assignee, had in view the hindering, delaying or defrauding of Kerr’s creditors, but indignant at the conduct of Kerr after the deed of assignment was executed and recorded, but before he had given bond, he refused to act longer as assignee, and the property of course again came into the possession of the assignor, who used and controlled it as if no assignment had ever been
The judgment is reversed and the cause remanded.