20 Mo. App. 193 | Mo. Ct. App. | 1886
I. The plaintiff in error insists that the instrument of conveyance by which Steifel & Ney conveyed the goods to Ilausmann, was in effect, a deed of assignment, and we are asked to so hold, in the event we should be of opinion that it was not so fraudulent as1 to other creditors as to wholly avoid its operation. And yet the defendants’ counsel has not attached so* much importance to this point as to have furnished the court with even the substance of the deed in the abstract of the record. This is not a compliance with rule fifteen of this court, and as heretofore held, we will not go to the transcript to ascertain the character of the instrument. The trial court evidently regarded and treated the instrument as a chattel mortgage to secure the debts of the bank and the brewing company. As every
II. Regarding the instrument as a chattel mortgage, but two questions arise on this record for our determination : was there any evidence requiring the submission to the jury of the fraudulent intent and purpose of Steifel & Ney in making the mortgage to hinder or delay other creditors ? and, if so, was there any evidence from which the*jury could have reasonably inferred that the bank and brewing company had knowledge of such fraudulent design, and that they participated therein ? It is unnecessary to the determination of this case that we should stop to consider whether there was sufficient evidence to go to the jury on the question of the good faith of the mortgageors, as their fraudulent intent would not be enough to avoid the deed. It devolved upon the attacking creditors to introduce proof tending to show that the beneficiaries had knowledge of such fraudulent intent, and, further, that they participated therein, i. e., were not acting in good faith, from an honest purpose to secure their own debts, but were aiding the debtors to defeat their other creditors by covering up the property, in some improper way, to the debtors’ use and benefit. Shelley v. Booth, 73 Mo. 74; Holmes v. Braidwood, 82 Mo. 610.
III. We have carefully examined the evidence, as presented in the abstract, and are of the opinion that the action of the court in withdrawing the case from the jury was fully warranted. Mere suspicion is not proof. However honest may be the conviction of the existence of fraud and irregularity in the mind of a creditor, in such cases, it will not supply “the law’s demand” for tangible evidence. It would have been the plain duty of the trial court, had the jury on this proof found for the defendants, to have awarded a new trial. In that event the court may decline to submit the case to the judgment of the jury. Jackson et al. v. Hardin et al., 83 Mo. 175.
The fact that the beneficiaries held certain securities did not deny their right to take other and additional security. The attacking creditors, after having reduced their claim to judgment, might by appropriate proceeding have secured to themselves any surplus after the satisfaction of the debts for which they were pledged. But the mortgagee being in possession of the' property, under the mortgage, the defendants had no right to interrupt that possession, without first satisfying the mortgage debts. In such case the mortgagee may maintain replevin against the officer seizing the goods under writ for their recovery, whether the mortgage debts-be due or not. Frisbee v. Langworthy, 11 Wis. 375.
A mortgagee in possession, pursuant to the provisions of the mortgage, is not a mere naked depositary, but his possession is coupled with an interest, and if interfered with he may either maintain replevin or an action for damages as for a conversion. McCandes v. Moore, 50 Mo. 571; Daggett v. McClintock, S. C. Mich., N. W. Rep. Jan’y, 1885, 107.
Other questions are raised by the plaintiffs in error, but they are not, in our opinion, of such character as would justify the reversal of the action of the lower court; and as they present no important legal principle, they are not commented on.
the judgment of the circuit court is affirmed.