68 Mo. App. 290 | Mo. Ct. App. | 1897
This is a suit in equity, the object of which was to have declared a general assignment a certain written instrument, which is as follows:
‘ ‘assignment oe genekal stock oe mekohandise.
‘ ‘Whereas, I, Jacob Clute, of Mirabile, Missouri, am indebted to (George A. Kennard Grocery Company, of St. Joseph, Missouri, certain sums of money, and they are hereby appointed assignee; unto Wm. Souders, of Mirabile, Caldwell county, Missouri, certain sums of money; unto the Kingston Savings Bank, of Kingston, Caldwell county, Missouri, in certain sums of money; and unto James A. Tait, Polo, Caldwell county, certain sums of money; and unto Ford & Darby, Cameron, Missouri, certain sums of money. Now, know all men by these presents that I, the said Jacob Clute, for and toward the payment and satisfaction of the said moneys and for divers other good causes and considerations me thereto moving, have granted, - assigned, bargained, and sold, and by these presents do freely and absolutely grant, assign, bargain, and sell unto the above named parties, all of and all manner of goods in my business of general merchandise in Mirabile, Caldwell county, Missouri; said general stock of merchandise intended to be affected by these presents are located in the building rented by me of and owned by A. W. Moffitt, of Mirabile, Caldwell county, Missouri,*294 to have and to hold them the same and every part and parcel thereof unto the said above named creditors, their executors, successors, administrators, and assigns.
“In testimony whereof, I have hereunto set my hand and seal this twenty-sixth day of November, A. D. 1895. Jacob Clute. [seal]”
This instrument was duly recorded and then sent to the defendant, George A. Kennard Grocery Company, who thereupon took possession of the stock of merchandise and made an invoice of the same. Ten days thereafter, the said Clute, the grantor, by a certain deed of trust conveyed to one Morris, as trustee, the said stock of merchandise, for the expressed purpose of securing the indebtedness of the said Clute to the same parties named in the said instrument herein-before set forth; and which deed of trust, inter alia, recited that, “on November 26, 1895, the first party herein made a conveyance to said third parties conveying to them the stock of goods herein described, but said conveyance failed to clearly and accurately set forth the intention of the parties thereto and this deed of trust is made for the purpose of accurately and clearly expressing the intention of the parties to said other conveyance and to reform the same and to convey said personal property for the security of said debts as herein expressed.”
It sufficiently appears from the record that the grantees in the first of said instruments turned over the possession of said stock of merchandise to Morris, the trustee named in the second, who was in possession at the time of the commencement of this suit.
The plaintiff contends that the first of said instruments is an assignment under the statute, section 424. This contention we can not sustain.
Now, it will be observed that said instrument recites that the said Clute is indebted to the creditors therein named in certain sums of money and that “for and toward the paymént and satisfaction of said moneys,” he grants, bargains, sells, and assigns to them said stock of merchandise. There is no defeasance clause in the said instrument.
The circumstances surrounding the execution of the instrument, as disclosed by the evidence, clearly show that Clute intended thereby to create a security,
Nor is there anything shown in the circumstances of the grantor that in 'the least impaired his common law right to prefer, as he did, his creditors.
There appears to he nothing in the several transactions between the grantor and his creditors so receiving a preference that would justify any interference by a court of equity. The two instruments, when read together and in the light of all the evidence, must be considered as a valid deed of trust, securing to the grantees a preference which the grantor had the legal right to make. It results that the decree of the circuit court, which was for the plaintiff, must be reversed, which is accordingly so ordered.