25 Mo. App. 496 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This action was commencfed in the lifetime of August Leisse, who has since died, and is now represented by Virgil M. Harris, his administrator. The petition sets forth, substantially, that the plaintiffs are residents of Philadelphia, Pa., and that the defendant, Leisse, is indebted to them in the sum of $1,275.88, for goods, wares, and merchandise, sold and delivered to him in the months of March, April, May, June, and July, 1884; that Leisse was, and for many years had been, engaged in the box factory business, and, at the time of said sales, his stock in trade had become very much depleted, he was wholly insolvent, and made said purchases for the purpose of defrauding the plaintiffs, it being his intention never to pay for the things purchased ; that, in July, 1884, Leisse made a general assignment for the benefit of all his creditors, to the defendant, Otto Moser, as assignee; that the assignee soon after, without any notice to the plaintiffs, but with the consent of the defendant, the International Bank, caused all of the assigned property to be sold in bulk for the sum of four thousand dollars ; that the defendant bank thereupon “resurrected” a chattel mortgage, bearing date April 30, 1879, which mortgage is set out at length in the petition. This instrument conveys to the defendant bank, in consideration of one dollar, and indebtedness mentioned, “ all the engines, machinery, and fixtures, tools, and appurtenances constituting a box factory, as well as the two horses, harness, and wagons, and lumber, and stock on hand, belonging thereto. * * * Also, such
• It is alleged in the brief for the appellants that there was a judgment by default against Leisse’s administrator, but this fact does not appear in the transcript before us. There was a general judgment for the other defendants.
The same mortgage above described was before this court for examination, as to its validity and effect, in the case of Moser v. Claes (23 Mo. App. 420). The-facts of that case were sufficiently parallel with those developed in the present record, to lead to the same conclusion in both cases, as to the merits of the instrument in question.- We there held, in effect, that the mortgage was fraudulent and void, so far as the materials and stock in trade were concerned; but that, as to the other property conveyed, it was a valid and forcible security, from the date of its registration, in favor of the International Bank. No satisfactory reason is shown us for a departure from those conclusions, and, after careful further consideration, we must re-adopt them, in their application to the present case. It follows that, to the extent of so much of the-four thousand dollar fund as does not represent the stock in trade, the bank’s prior claim, under its mortgage, is fatal to the plaintiffs’ demand. It is shown by a calculation in the brief for appellants, that, by the-effect of a certain stipulation at the trial, the value of the stock in trade is to be estimated at $1,575.89. This, then, is all that the plaintiffs could claim out of the-fund, if there were no prior claim upon it, other than that of the International Bank.
The record shows that, on a day before this suit was-instituted, Claes & Lehnbeuter obtained a judgment, by confession, against Leisse, for $2,027.32, and immedi
Some other interesting questions, arising upon the record, are ably discussed on both sides, in the briefs of counsel, but it is unnecessary here to remark further upon them, since the case is fully disposed of by what has already been said.
To prevent any misunderstanding, as to what the court holds in this case, and what was held in the case of Moser v. Claes (23 Mo. App. 420), it is proper to say that, in allowing one creditor to get, by superior diligence, a preference over another creditor, in respect of this fund, we necessarily proceed upon the assumption that the fund neyer passed , to the assignee under the deed of assignment; since, if it had so passed, it would have become, under the operation of the statute relating to assignments for the benefit of creditors, subject to pro rata distribution among all the unsecured creditors of Leisse. But, as this court held, in Haeussler v. Teichmann (9 Mo. App. 594), the assignee in such a deed of assignment takes nothing for the purposes of the trust, except what the deed gives him. He can not impeach prior conveyances of his assignor for fraud. He does not, in this regard, stand as the representative of the creditors. He takes nothing which the -.assignor has previously conveyed to another, by any instrument which is good against the assignor. Such a conveyance may indeed be impeached for fraud, but this can only be done by a creditor; and this creditor, when he has gone to the expense of the litigation, which has resulted in the setting aside of such prior conveyance, is not to be put in the position of seeing the fruits of his superior diligence pass into a general fund for equal distribution among the creditors of the assignor. The law does not, after he has shaken the tree, allow all the other credi
With the concurrence of all the judges, the judgment of the circuit court is affirmed.