24 Mo. 575 | Mo. | 1857
delivered the opinion of the court. ’
The plaintiff brought his action against Maddox, the defendant, who, as sheriff of St. Louis county, had seized and taken, by virtue of an execution to him directed, certain property which the plaintiff claims by virtue of a deed of trust made by True W. Hoit to the plaintiff as trustee for the benefit of certain creditors of Iioit named in the deed.
The following is the deed of trust: “This deed made this '20th day of November, 1854, by and between True W. Hoit, •party of the first part, Missionary E. Martin, party of the second part, both of the city and county of St. Louis and state •of Missouri, and the persons and firms, creditors of said party •of the first part, hereinafter named, parties of the third part, witnesseth: that.the said party of the first part, for and in consideration of the debts and trusts hereinafter named and -created, and of the sum of one dollar to him paid by said party ■of the second part, does by these presents grant, bargain, sell, assign, transfer and set over unto said party of the second part and his legal representatives or assigns, all and singular the •goods, wares and merchandise, store fixtures and furniture, constituting the stock in trade of him, the said party of the 'first part, in his business asa retail and wholesale dry goods 'merchant, which goods, wares and merchandise, store fixtures and furniture, are at present situated in the store No. 155, on Third street, in the store Nos. 212 and 214 Broadway, in the store No. 218 Broadway, and in the store at the south-east «corner of Main street and Washington avenue, all in said city -of St. Louis ; also all and singular the goods, wares and mer-
The plaintiff also offered to prove as preliminary to offering the deed made by Iloit to plaintiff, dated November 20, 1854, the same just set out above, “ that the several parties and firms mentioned in said deed as cestui que trusts or beneficiaries had actual notice of the making said deed, and verbally assented to
The defendant gave in evidence the execution in favor of Blanchard and others against Hart. It recited that, “ Whereas, John A. Blanchard, James A, Converse, William H. Harding, Joseph H. Gray and Edmund W. Converse, on the 23d day of November, 1854, at our Circuit Court, recovered against True W. Hoit the sum of forty three hundred and forty-one dollars and eighty-four cents,” &c., commanding the sheriff to make the debt and costs, of the goods, &c., of said Hoit. The cause was tried by the Circuit Court without a jury ; the court found the issue for the defendant, and judgment was rendered for him accordingly. The following is the finding of the court: “ That the only title or interest in the goods, wares and merchandise sued for, which the plaintiff has, is under and by virtue of the deed offered in evidence ; that the goods, wares and merchandise sued for were part of those described and included in said deed, and were of the value of $6000 ; that said goods, wares and merchandise were, at the commencement of this suit, in the possession of the defendant as sheriff of St. Louis county, under and by virtue of the writ of execution against True Worthy Hoit mentioned in the answer of the defendant.” The plaintiff brings the case here by appeal. In this court the appellant’s counsel has made two points on which he relies for the reversal of this judgment; 1st, the court below erred in excluding the proof which the appellant offered to make, because
The deed in this case from Hoit to Martin is void as is seen by its face. (Brooks v. Wimer, 20 Mo. 503.) Indeedit is not pretended by the plaintiff’s counsel that the deed is otherwise, but they contend that the knowledge of the making of such deed, of its terms and provisions, and of the acceptance of the same, and the assent thereto by the creditors of Hoit, the beneficiaries in the deed, make it good as to such beneficiaries and creditors ; it is not made to defraud them when made by their knowledge and consent. Grant that such is the law in such cases, still it remains to be seen if the facts in this case come within it. The principle is well established. In Hone v. Henriquez, 18 Wend. 243, the Chief Justice, in delivering the opinion of the court, asked the question: “ Why is an assignment by a debtor fraudulent? It is only so because the effect of it is to delay or defeat creditors in the collection of their demands. It is a proceeding therefore adverse to the interests and wishes of creditors ; but if all the creditors assent to such assignment, and agree voluntarily to take their proportion of the assigned property and discharge the debtor, there is no fraud in such a transaction, and of course such an assignment, executed with the assent of all the creditors, would be valid, not void.” An assignment confessedly fraudulent is good as to creditors who assent to it. (Burrill on Assignments, 406.) It may be valid in favor of such creditors who choose to affirm it, and voidable against such who disaffirm it. In Burrows et al. v. Alter et al., 7 Mo. 424, this court held the same doctrine. Admitting such to be the law, and that the deed of trust in this case is not fraudulent and void as to the beneficiaries and creditors accepting and affirming it, still the question to be looked at is, did the offered and rejected proof
On the second point we think from the whole case the court below could not have rendered judgment otherwise than it did. Its judgment therefore is affirmed;