73 Mo. App. 245 | Mo. Ct. App. | 1898
I. on respondent's motion to aeeirm.
Counsel for interpleader and respondent have filed here a motion to affirm the judgment because of an alleged insufficiency of the abstract. It is contended that the abstract fails to show that a bill of exceptions was duly filed, and that' as to that matter, as well as the testimony, the abstract is a mere statement of counsel, etc.
There is no merit in the motion. The case is brought up under the short method of filing here a certified copy of the judgment, and the abstract furnished by appellant shows that on the day the motion for new trial was overruled, to wit, November 13, 1896, and “during the said October term, 1896, the court, by order duly entered of record, extended plaintiff’s .time for preparing and filing bill of exceptions until the 1st day of February, 1897; and within the time allowed by the court the plaintiff duly prepared said bill of exceptions taken upon the trial of said cause, and presented the same to the judge of said court, and asked that it be signed and sealed and made a part of the record in said cause. And said bill was, on the 14th day of January, 1897, duly signed and sealed by D. A. Stratton, judge, etc., * * *, and on said date the same was duly filed in the office of the circuit clerk of Dade county, Missouri.”
This was a sufficient showing of the signing and filing of the bill of exceptions. It is all that ought to be expected in an abstract. Perhaps not so complete as required in a full transcript, for that must be a literal copy of the record; while the abstract, filed in lieu
II. STATEMENT OE THE CASE.
On the fifth day of December, 1895,- the plaintiff, wholesale merchant at Springfield, Missouri, brought an attachment suit against T. L. Brown, Jr., to recover a large balance which said Brown owed them for goods sold. Thereupon the sheriff levied upon the" entire stock of merchandise which said Brown had in his store at Lockwood, Dade county. In due season A. J. Duckett filed an interplea claiming the attached goods. In answer to the interplea, plaintiff denied Duckett’s right to the goods, set up that said inter-pleader claimed the same under an alleged chattel mortgage, dated eleven months prior to the attachment, and that the same was fraudulent and void because by its terms the mortgagor was allowed to retain the possession of the goods and for his own use to sell in the ordinary course of business; and also because said mortgage was, by agreement of the parties thereto, kept secret and off the record, thereby deceiving and defrauding plaintiff and other creditors of Brown who sold him goods in the meantime on the faith that the goods were unincumbered. In was conceded that the interpleader took possession of the goods the same day, but before the attachment was levied. But in the reply said interpleader denied that he took possession under the mortgage, but that the goods were delivered to him by Brown as an independent pledge to secure inter-pleader’s claim against said Brown.
To more fully understand the nature of this controversy, it seems necessary to give something of its history. On January 2, 1895, the interpleader, A. J. Duckett, owned a stock of general merchandise at the
At the trial by the court without a jury, the following, among other declarations of law, was asked by plaintiff’s counsel but refused by the court:
“2. The court declares the law to be, if it appears from the evidence that T. L. Brown, Jr., executed the mortgage to A. J. Duckett, read in evidence, and that it was agreed that said mortgage should be withheld from the record, and that after the execution of said mortgage the plaintiff sold goods to the defendant, T. L. Brown, Jr., in ignorance of the existence of said mortgage, and that plaintiff would not have extended credit to said Brown had it known of said mortgage, and that A. J. Duckett failed to record said mortgage or take possession of said goods until after plaintiff had sold defendant Brown the goods sued for, the said mortgage is fraudulent and void, and your verdict should be for the plaintiff.”
At the request of the interpleader the court gave the following instruction: “The court declares the law to be that it is admitted by the pleadings that A. J. Duckett, interpleader, was in possession of the goods, wares and merchandise and book accounts claimed by interpleader at the time of the seizure by the sheriff, and if the court shall find that such possession was obtained by permission and consent of T. L. Brown, the former owner, in good faith for the purpose of securing payment of the notes read in evidence; that the notes
The court gave judgment for the interpleader and plaintiff appealed.
III. The trial court seems to have determined this case on the theory that although Duckett’s chattel mortgage was intentionally kept off the record during the entire time from the date of its execution in January to the December following, and though during that interval this plaintiff may have sold and delivered merchandise to Brown, the mortgagor, yet since said mortgagee took possession of the goods covered by the mortgage before plaintiff’s attachment toas levied, the title of the mortgagee must be treated as superior to that of the attaching creditor. In other words, that even though the mortgage was of no validity when off the record and unaccompanied by possession in the mortgagee, yet as the mortgagee acquired the possession before levy of plaintiff’s attachment, then the fraudulent mortgage became valid and the right of the mortgagee superior to that of the attaching creditor. This ruling of the circuit judge is in direct conflict with the decision of this court in Williams v. Kirk, 68 Mo. App. 457. In that case it was conceded that a mortgage, void for want of record or possession of mortgaged property in the mortgagee, may be cured and made valid by the mortgagee subsequently taking possession, and that such cured mortgage would prevail over creditors whose rights had not already attached. But it was denied that any such rule should apply to creditors whose claims against the mortgagor had come into existence (or had attached) during the time when the chattel mortgage was being withheld from record.
The reasons ■ for the distinction between these
This just rule applies with force to the facts of this particular case. While this plaintiff was, during the time from January to December, 1895, furnishing Brown large amounts of goods (so that more than $1,400 was due at the latter date) the interpleader Duckett had in his possession an unrecorded chattel mortgage from Brown quite sufficient to absorb the whole of the latter’s property. Ignorant of this incum-
And again, quoting from a well considered case from Mississippi, this language was adopted by the learned judge: “Aman must be conclusively taken to intend the natural and logical result of his acts. We are of the opinion that the natural and logical effect of the agreement and assignment, and the conduct of the parties thereto, was to mislead and deceive the public, and induce credit to be given to Baggett (the grantor) which he could not have obtained if the truth had been known, and therefore the whole scheme was fraudulent as to the subsequent creditors, as much so as if it had been contrived with that motive and for that object. If one is actually misled to his prejudice and loss by the conduct of another, the injury to him is just the same as though the thing were done for the very purpose of deceiving.” Hilliard v. Cagle, 46 Miss. loc. cit. 338. See, also, Sauer v. Behr, 49 Mo. App. 86; Bump on Fraud. Con. [3 Ed.] 39.
The act thus committed by withholding the mortgage from record operates as a fraud in fact, and is not a mere constructive fraud. Audit is no answer to this
The suggestion in brief for interpleader that the latter did not take possession wider Ms mortgage, but rather under an independent agreement for a pledge made between him and Brown on December 5, is opposed by all the evidence and the conduct of the parties at the time, as will be seen by reference to the facts set out in our statement.
Judgment reversed and cause remanded.