31 Mo. App. 447 | Mo. Ct. App. | 1888
Lead Opinion
I. The ' chief question presented for our determination is, what is the legal character of the written instrument % Is it a bill of sale, a chattel mortgage, or a deed of assignment ?
It is not a bill of sale, because no actual consideration was paid, or agreed to be paid, for the property conveyed ; nor were the debts thereby extinguished, so as to irrevocably pass the title, without any condition or trust attached thereto, or any reversionary interest in the seller.
It is either a chattel mortgage, or a deed of assignment. It is made by a debtor to creditors, the consideration being the existing debts ; and the conveyance is coupled with a trust to be kept and performed by the grantees, as a means of accomplishing payment of said debts; and there would, by equitable implication, arise a reversionary right in the grantor to any surplus after satisfaction of the debts out of the property conveyed.
II. In some respects this, deed is unique. To define its exact character and determine whether it should be assigned to the class of chattel mortgages or deeds of assignment is by no means free from embarrassment. Viewed as-a chattel mortgage, it is peculiar in many
On the contrary, the debts of the grantor are only named as the consideration of the conveyance; the transfer, in terms, is absolute, with no clause of defeasance on performance by the grantor. The grantees, by designated agent, are to take immediate and absolute control and possession of the property,, and proceed unconditionally to sell the same, and distribute the proceeds among the designated creditors.
It possesses, therefore, the qualities and characteristics of a conveyance in trust to pay debts, rather than a c onveyance as a security for debts.
The authorities all concur in holding that one of the distinguishing characteristics of a mortgage is, that it purports to be a security for debt. Jones' Chat. Mort., secs. 1, 34; Jones on Mort., sec. 60; Harris v. Jones, 83 N. C. 321, 322, and loc. cit.
In Crow v. Beardsley, 68 Mo. 438, the language oi Burrill on Assignments is approved, that an assignment is a conveyance to a trustee for the purpose of raising funds to pay a debt, while a deed of trust in the nature of a mortgage is a conveyance in trust for the purpose of securing a debt subject to a condition of defeasance.
So in the recent case of Smith & Keating Implement Co. v. Thurman, 29 Mo. App. 186, we have said: “A mortgage is a conveyance of an estate by way of a pledge, for the security of a debt, to become void upon payment of it, or a conditional conveyance of land designed as security for the payment of money, the fulfilment of some contract, or performance of some other act, and to be void upon such payment or performance.”
This distinction is aptly put in Hoffman & Co. v. MacKall, 5 Ohio St. 130: “There is a manifest and well-settled distinction between an unconditional deed of trust, and a mortgage or deed of trust in the nature of a mortgage. The former is an absolute and indefeasible conveyance of the subject-matter thereof, for the purpose expressed; whereas the latter is conditional and defeasible. A mortgage is the conveyance of an ’estate, or pledge of property, as security for the payment of money, or the performance of some other act, and conditioned to become void upon such payment or performance. A deed of trust in the nature of a mortgage is a conveyance in trust by way of security, subject to a condition of defeasance,- or redeemable at any time before the sale of the property. * * * By an absolute deed of trust, the grantor parts absolutely with the title, which rests in the grantee unconditionally, for the purpose of the trust. The latter is a conveyance to a trustee for the purpose of raising a fund to pay debts; while the former is a conveyance in trust for the purpose of securing a debt, subject to a condition of defeasance;” citing Woodruff v. Robb, 19 Ohio, 216; Hill Mort. 359. While the purpose to make a deed of assignment is better expressed by the designation of a trustee or assignee in the deed, this is not essential; but the deed may be made, as was done in this instance, to the creditors, with a designated agent of the creditors to
•Any surplus remaining after paying the debts would) by operation of law, with or without any expressed provision therefor, revert to the grantor. This condition, taken in connection with those thereafter “set forth,” shows that it was contemplated and intended that the whole of the goods should be sold, and the proceeds distributed among the creditors unreservedly and at all events.
y. We would not be understood as going so far in this discussion, as to hold, that if any appropriate language had been employed in the instrument to indicate that the conveyance was made as a mere pledge or security to secure the payment of the debts named, its character as a -mortgage would have been destroyed, merely because it authorized the mortgagee, or trustee,
That was substantially the case of Smith Imp. Co. v. Thurman, supra, though the fact was not so fully developed in the opinion, perhaps, as it should have been. The mortgage there expressly declared, inter alia : “ This conveyance is made for the purpose of securing the payment of said debts.” It also contained the condition: “Now, if said party of the first part, shall well and truly pay and discharge said debts in full, according to the tenor and effect of said notes, at any time before any or all of said property herein conveyed shall have been disposed of by said trustee, then as to said property, or the residue thereof, this conveyance shall be void,” etc.
Nothing of the sort appears in this deed. Our conclusion is, that the circuit court properly construed the instrument to operate as a deed of assignment, and to be enforced pursuant to the statute concerning assignments for the benefit of creditors.
its judgment is affirmed.
Rehearing
On motion for rehearing.
We shall make no comment on the spirit manifested in the motion for rehearing in this case. Our office is to ascertain and follow the law as we are able to understand it. We will only say that the question of law presented by the record, as to whether the deed in question was a chattel mortgage or an assignment, was an important one, and gave us much thought; and we reached the conclusion of the opinion after the most mature consideration. Reaching the conclusion as we did, in harmony with that of the learned trial judge, that the instrument was a deed of assignment, it for all practical purposes ended this controversy.
I. The criticisms made by counsel, in their motion for rehearing, on the opinion of the court, in many
Again the opinion is criticised because of the clerical error in the statement of facts, that the “defendant, against the objection of plaintiffs, introduced” certain evidence. The parties were simply transposed, «tnd the opinion is accordingly corrected. But how are the defendants injured thereby ? The answer made in the motion for rehearing is, because the court did not consider defendants’ objection to the admissibility of this evidence. If, as a matter of law, as held in the opinion, the deed on its face is a deed of assignment, that evidence amounted to nothing one way or the other. But it was perfectly competent for the plaintiff to introduce evidence to show that, as a matter of fact, the property covered by the conveyance embraced all the available assets and property of the assignor, as bearing upon the question of the intent of the party in making the deed, or whether it was a general or partial assignment. So the opinion states, “ this is always a matter of proof aliunde. 27 Vt. 475.” And even had this evidence been inadmissible, it would have constituted no reversible error, for the reason, as held in the opinion, our statute applies as well to partial as to general assignments.
II. Criticism is made of the opinion for the assertion that the conveyance by Mrs. Botts ended her business operations. ‘ ‘ It embraced all her available assets. The rest either constituted a homestead, or was covered
III. The observations of the court touching the fact that the instrument is not a bill of sale are criticised. We can only say that we followed in this matter Burrill on Assignments, section four.
It is true that the forgiving of the debts owing by the vendor would constitute a sufficient consideration for a sale. But there is no pretense that the debts were extinguished, or any part thereof, by the transaction, or intended to be. - On its face it was a conveyance in trust to raise a fund to pay the debt, and, therefore, was not a sale. What is the purpose of counsel in this discussion, we are unable to understand. Is it to assume the position that the instrument in question is a bill of sale ? They tried the case below on the theory that it is a chattel mortgage, and so they contended on the appeal. The only other question in this connection, presented by the motion, of any merit, is the contention that the closing paragraph of the deed indicates the purpose on the part of the grantor to 'reserve the right of redemption: “It is further agreed that, if at the end of ninety clays, from this date, all of said debts are not paid, then the said Williams shall, at the request of any of the grantees herein, after giving five days’ public notice, proceed to sell said property herein conveyed, or as much as may be necessary, at auction, for cash, to pay any balance due on said debts.”
This paragraph did not escape the attention of the court. It so palpably refers to the preceding matter of the deed, as to the course to be pursued by the trustee in disposing of the goods, that we did not deem it important to prolong the opinion by its discussion. As stated in the opinion with reference to the first paragraph, respecting the payment of the debts “within ninety days from this date,” the whole deed clearly shows that the contemplation of the parties was, that
IY. To hold, as now requested by appellants, that the inference of a conveyance as a mere security for a debt may be drawn from thelanguage : “ Whereas, I am indebted to the above-named grantees,” would make any deed of assignment a chattel mortgage, for that is. the usually expressed consideration of a deed of assignment.
The case of Steele ex rel. v. Faber, 37 Mo. 72, referred to by counsel, is so obviously unlike the case at bar, as to scarcely- deserve discussion. There the
Y. It is again suggested in the motion for rehearing that we should transfer this case to the Supreme Court, on the ground that the amount involved exceeds the jurisdiction of this court. This question, so far as' this court is concerned, has become rem judicatum. The appeal was originally taken to the Supreme Court. There the respondents filed motion to have the cause transferred to this court, on the ground that the real subject-matter of the controversy was within the jurisdiction of the court of appeals. On consideration, the motion was sustained by the Supreme Court, and the cause, by order of that court, was accordingly transferred. After the same was filed in ' this coiirt the appellants presented motion here to have the cause re-transferred to the Supreme Court. That motion was, on consideration, overruled, as we felt concluded by the action of the Supreme Court.
It follows that the motion herein is denied.