32 Mo. App. 125 | Mo. Ct. App. | 1888
— This was an action of replevin. The answer admitted the taking of the property and justified the same under a writ of attachment, issued in favor of William Orr against Wallace McIntosh by Thomas N. Leasure, a justice of the peace, directed to the defendant as constable.
It appeared from the evidence introduced for the-plaintiff that he had purchased the property in dispute-of Wallace McIntosh, his son, on February 8, 1887, and that the property remained in the possession of the son until about February 20, on which day the plaintiff put one Albert Cure in possession of the property as his agent. The suit by attachment against Wallace McIntosh was instituted on March 8, 1887.
The court instructed the jury to find for the defendant.
This action of the court under the evidence can be upheld on one ground only, viz., that the sale by Wallace McIntosh to the plaintiff in this case was, under our statutes, fraudulent and void as to the plaintiff in the attachment suit against Wallace McIntosh on account of the property not having been delivered to the purchaser before the twentieth day of February, the sale having been made on the eighth day of that month.
Conceding that the delay in the delivery of the property was unreasonable, the q uestion presented for our determination is, if a bona-fide sale of goods and chattels is not accompanied by a delivery in a reasonable
Our statute (R. S. sec. 2505)is as follows: “Every .sale made by a vendor of goods and chattels, in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being-bad as to the situation'of the property, and be followed ¡by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith.”
Under this statute we think that actual possession taken and retained by the vendee of the things ¡sold completes his title against all persons except ■¡those whose rights may have intervened between the •sale and the taking of possession. As against the vendor the vendee’s title is good without possession; possession is only needed to complete the title as against ■creditors of, and subsequent purchasers from, the vendor. Had no sale been made, the vendor could by sale and -delivery of possession give to the vendee a perfect title . against all except those with existing rights ; why shall not the delivery of possession under a sale already made ‘ have the same effect % The vendor, having made a sale, ¡another sale is not needed (in fact, he has nothing to ¡sell), and he may complete the sale by a.delivery of the ■things sold, to take effect against others from the time ■that the delivery is made. In such a case, the sale runs, ¡as between the vendor and vendee, from the time of the ¡sale, but as against creditors of and purchasers in good faith from the vendor, from the time of delivery.
This, we think, is the clear meaning of the statute. "To hold otherwise would be to prevent a sale unaccompanied by a delivery within a reasonable time from ever becoming perfected as against creditors and subsequent purchasers in good faith. To do this would be to perpetrate wrong, to prevent which was the object of the
An attaching creditor, as such, has no rights in the ■debtor’s property until after levy under the writ of attachment; therefore, the question in this case must be answered in the negative.
Our conclusion is supported by the following authorities: Bump on Fraud. Con. 173; Bartlett v. Williams, 18 Mass. 288; Read v. Wilson, 22 Ill. 377; Crookshank v. Cogswell, 26 Ill. 366; Calkins, 16 Conn. 276; Blake v. Graves, 18 Iowa, 312. A contrary conclusion has, however, been reached in Cabanne v. Bay, 10 Mo. App. 594, and in Franklin v. Gummersell, 11 Mo. App. 306.
The precise question in this case has not, so far as we know, been decided by our supreme court. For this reason the judgment will be reversed and the cause remanded, but on account of the conflict between our conclusion and the decision of the St. Louis court of appeals above cited, the case, with all papers on file therein, will be transferred to the supreme court. It is so ordered.
