99 Mo. App. 641 | Mo. Ct. App. | 1903
This is an action of replevin which was begun to recover the possession of certain wheeled vehicles.
The case may be shortly stated in this way, viz. r. On November 5,1900, the defendant Wells was engaged in carrying on business under the name of the “ Sedalia. Implement Company,” and then had in his possession certain vehicles claimed by the plaintiff — a corporation; that on that day he recognized the title of plaintiff and voluntarily turned over the possession of such vehicles to one Holcomb, agent of plaintiff,, who listed and moved them to another floor of the warehouse. On the morning of November 6th, he placed them in the possession and custody of one Richardson, and on the
It further appears that on November 8, 1900, certain creditors of Wells filed a petition in bankruptcy in the United States District Court; that on the same day Wells signed a confession of bankruptcy and an application was made to a referee in bankruptcy for a receiver, which appointment was accordingly made. On the 15th, the receiver so appointed took charge of the bankrupt’s estate. On the 26th, Wells was duly adjudged a bankrupt, and on December 10th, following, defendant was elected trustee of the bankrupt’s estate.
There was a trial which resulted in judgment for plaintiff and defendant brings the cause here by appeal.
One of the questions which counsel have discussed here at the bar and in their printed briefs, is, whether or not the State court issuing the writ under which the caption of the property took place thereby acquired jurisdiction. Under the Bankruptcy Act of 1867 the title of the bankrupt in his property passed upon the mere filing of the petition; but under that of 1898, it passes as of the date of the adjudication. Mueller v. Nugent, 184 U. S. 1; In re Wells, 114 Fed. 222. As has already been stated, the adjudication did not take place until November 26, 1900, while this suit was commenced on the 9th — seventeen days previously — so that at the date of the bringing of the suit the title of Wells was still in him and had not passed to either the receiver or trustee of his estate. At the time of the commencement of this suit there was nothing in the bankrupt proceed
It will be seen by reference to 114 Federal Reporter 222, that the defendant trustee herein filed in the proper United States District Court a bill in equity praying that the carriage company, plaintiff herein, be enjoined from the further prosecution of this replevin suit in the State court, and that it be required to deliver the possession of the property taken under the writ of replevin over to the trustee; and if the property could not be delivered, that the carriage company be required to account to the trustee for the value thereof. On the hearing the court refused to grant the relief sought, and in the course of a very able and exhaustive opinion, it was held that the bankruptcy court did not acquire jurisdiction oiler the property which had been-taken on the writ of replevin and which was never in its possession, and that it was not authorized to enjoin the further prosecution of the replevin suit in the State court, nor to compel the plaintiff therein to submit its claims to its own jurisdiction. And in the same connection it was further said that all agree that the court, State or Federal, which first takes possession of the property retains the possession and the jurisdiction. And to the same effect is Trust Co. v. Comingor, 184 U. S. 18. The decision just referred to, reported in 114 Federal Reporter, does not appear to have been questioned by appeal or otherwise, so that no reason is seen why it may not be regarded as having authoritatively determined the jurisdiction of the subject-matter of the present suit to be rightfully in. the State court in which it was brought, and not in that of the court of bankruptcy.
The second question presented by the record for decision relates to the merits of the controversy. At the conclusion of plaintiff’s case the defendants interposed a demurrer thereto, which was by the court de
The instrument provided not only that the title to the vehicles should remain in the plaintiff, but as well that that to the proceeds of the vehicles disposed of in the usual course of trade. The transaction would there
"Where the integrity and good faith of a transaction evidenced by a mortgage is not, as here, questioned, such a mortgage, though fraudulent in law, can be validated against creditors if possession be taken of the mortgaged property by the mortgagee with the consent of the mortgagor before the rights of creditors intervene. By the taking of the actual possession by the mortgagee it is purged of the fraud. Barton v. Sitlington, supra; Dobyns v. Meyer, 95 Mo. 132; Joseph v. Boldridge, 43 Mo. App. 333; Wood v. Hall, 23 Mo. App. 100. No creditor of Wells had intervened or caused the vehicles to be seized on legal grounds before the possession of them was delivered by him to the plaintiff. After the delivery of the property to plaintiff they could not be attached or seized under execution at the instance of another'creditor of Wells. Barton v. Sitlington, supra. But between the time of the acquisition of it under the conditional sale or mortgage and that when Wells delivered back the possession to plaintiff, it was subject to attachment or execution by his creditors.
According to the contention of the plaintiff, the possession of the property was delivered to him three days before that on which the petition in bankruptcy was filed, and therefore on the latter day the title to it
Section 67, subd. “a,” of the bankruptcy act also declares that claims that for want of record or for any other reason would not have been valid liens against the claims of creditors of the bankrupt shall not be liens against his estate. This statute most manifestly was designed to apply to cases where liens are claimed
It follow's that it was immaterial whether Wells was in possession under the contract or whether he had turned it over to plaintiff’s agent and then retaken it, and in that way was in possession at the time of the caption, since in either case the title by operation of law had passed to the trustee of the bankrupt’s estate when the adjudication was made. As has been stated, the conditional sale or mortgage though valid between the plaintiff and Wells was absolute as to the creditors of the latter, and as the property could have been transferred by such latter, or levied upon and sold under judicial process against him, it results that under the bankruptcy act the transaction between plaintiff and Wells, whereby it is claimed that Wells redelivered the possession to plaintiff, was ineffective to vest the title in him. It still remained in Wells, as if there had been no such redelivery. He was, under the circumstances, incapable in law of making or assenting to the redelivery of the possession back to the plaintiff so as to revest the title in plaintiff or of thereby divesting himself of it as against creditors, or, which is the same thing, his trustee in .bankruptcy.
The title remained in Wells as to creditors from the time he acquired title under the sale to him until he
And since we must bold the title to the property was in Wells at the time of the institution of' the suit, it inevitably follows that upon plaintiff’s own showing it was not entitled to recover, and the trial court there: fore erred in denying the demurrer. Accordingly, the judgment will be reversed and cause remanded.