42 Mo. App. 77 | Mo. Ct. App. | 1890
This was a proceeding in equity, instituted to protect and hold property in the hands of the defendant Kerfoot as trustee until the plaintiffs could bring their action and recover at law to enforce a supposed vendor’s lien for the purchase price of personal property sold by them to the defendant Cohen, the grantor in the deed of trust. The petition in substance states, that on the — - day of August, 1889, the
I. Upon grounds which we shall presently state, we do not think the petition states facts which entitle the plaintiffs to the relief demanded or to any other relief, and, therefore, we shall confine our examination of the case to that pleading alone.
Section 4914, Revised Statutes, 1889, does not create a lien in favor of the seller of the goods, though it may be considered in some cases in the nature of a lien — an inchoate, embryonic lien, which does not attain the dignity of a full-fledged lien until an execution is issued on a judgment for the purchase price. Woolfolk v. Kemper, 31 Mo. App. 421 ; Bolckow Milling Co. v. Turner, 23 Mo. App. 103 ; Lawrence v. Owens, 39 Mo. App. 319; Parker v. Rodes, 79 Mo. 88; Norris v. Brunswick, 73 Mo. 256 ; Francis v. Thomas, 86 Mo. 84. The well-established principle of equity is that, before it will lend its aid, the party invoking it must have gone as far as he may with his legal remedy. Merry v. Freeman, 44 Mo. 518; Alnutt v. Leeper, 48 Mo. 319;
In Martin v. Michael, supra, it was stated that the creditor must have completed his title at law by judgment and execution before he can question the disposition of the debtor’s property. The reason of the rule seems to be that until the creditor has established his title he has no right to interfere and it would lead to an unnecessary, and perhaps a fruitless and oppressive, interruption to the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor he has no concern with his frauds. And in Woolfolk v. Kemper, supra, this principle of equity was applied to a case of this kind. It was there said that “the only method of subjecting property for the purchase price is to obtain a judgment therefor.” Until this is done the seller has not placed himself in a position to call into requisition the assistance of a court of chancery. Applying this principle to the facts alleged in the petition and it is, therefore, plain that the plaintiffs have not placed themselves in a position to invoke the aid of injunctive process. They had not a judgment for the purchase price of the goods sold to the defendant Cohen. The statute creates no right or interest in the goods, in favor of the seller, which a court of equity, before judgment for the purchase price, can lay hold of, and by means of which equitable relief can be made effectual.
We do not doubt that, if the plaintiffs were in a position to call into requisition the flexible powers of a court of equity, it would enforce the lien of the seller for the purchase price of the goods, even in the hands of a trustee or assignee, and, perhaps, would follow the fund arising from a sale of such goods m cases where there was proper notice that the goods were not paid for when the trust was created.
The case of Boyd v. The Ward Furniture, Stone and Carpet Co., 38 Mo. App. 211, decided by the St.
EL The petition charges that the deed of trust was made in fraud of the creditors of the defendant Cohen who is the grantor therein. The plaintiffs, by this allegation, have suggested another insurmountable barrier to their rights of recovery. It shows that they had a complete and adequate remedy at law by attachment. R. S. 1889, secs. 521 (subdivisions 7, 8, 9, 10-14), 522; State ex rel. v. Mason, 96 Mo. 127; Parker v. Rodes, 79 Mo. 88. And the well-settled course of adjudication in this state is that injunction will not lie where a party has a complete and adequate remedy at law. Bailey v. Wade, 24 Mo. App. 186; Burgess v. Kattleman, 41 Mo. 480; Hopkins v. Lowell, 47 Mo. 102 ; Steines v. Franklin County, 48 Mo. 167; Demschroder v. Thias, 51 Mo. 100.
In the view which we have taken of the case it is needless to consider the other points, so ably discussed, in the brief and supplemental argument of counsel.
The judgment of the circuit court must be affirmed.