90 Mo. 366 | Mo. | 1886
This is an action of replevin to recover the possession of certain personal property, in which the plaintiff recovered judgment, from which defendant has appealed. It appears from the record that the plaintiff,' Lonvilla, who was the sister of one H. C. McGruder, •claimed the property in question, consisting of a stock-•of goods, by virtue of a mortgage which was duly executed and acknowledged by said McGruder, on the twenty-second of 'January, 1883, conveying the same to her to secure her in the payment of the sum of eight hundred dollars. This mortgage was duly recorded. The defendant claimed the goods by virtue of a levy made by him, as constable, on said goods, in April, 1883, of certain executions issued upon judgments against said McGruder, and claimed that the said mortgage was fraudulent and void as to creditors.
Mrs. Hisey, the plaintiff, testified in her own behalf, and, among other things, stated that, when the mortgage was given she left the goods in the possession of Mc-Gruder to be sold by him at retail on his own account; that she supposed he did sell out of them ; that she in-' tended he should do so ; that he did not make any retinas to her for any- of them, up to the time she took
Defendant offered evidence to show that on the same day the mortgage was executed suits were commenced against McGruder by his creditors, which the court refused to receive. The record further shows that the court, although requested to do so, refused to give or consider any instructions, and rendered judgment for the plaintiff. The mortgage, .although it provided that McGruder was to retain possession till the notes matured, was not, on its face, as a matter of law, fraudulent, it not appearing thereon that McGruder was to sell the goods on his own account, and not make any return of the proceeds. Had these things appeared in the. mortgage it would have been fraudulent in law as against creditors. The evidence tended to show, if it did not conclusively establish, that the mortgage, as to creditors, was fraudulent in fact, and the question should have been submitted in appropriate instructions, Weber v. Armstrong, 70 Mo. 217. The evidence rejected should also have been received as bearing. upon the-question of fact as to-whether the mortgage was fraudulent. Although the case was tried -without the. inter-.
Judgment is reversed and cause remanded.