45 Mo. App. 298 | Mo. Ct. App. | 1891
— This was an action by the relator against the defendant, a constable, and the sureties on his official bond for damages. The abstract utterly fails-to meet the requirements of rule 15 in that it sets out no part of the pleadings and nearly none of the evidence. Though the only question presented by the-appeal for our consideration is as to the propriety of the action of the circuit court in withdrawing the case-from the consideration of the jury by the giving of an instruction in the nature of a demurrer to the plaintiff’s evidence, yet the abstract sets forth only a fragment of the evidence. It does not pretend to give all the material evidence adduced by the relator; and were it not for the counter abstract of the defendants, and the admissions contained in their brief, we should feel it our bounden duty to dismiss the appeal.
As near as we can understand it, the relator, who was the only witness introduced, testified that on the twenty-sixth of September, 1889, she bought by her husband,
I. The only question which is presented for our decision is, whether the court ought to have taken the case from the jury, on the ground that the undisputed facts failed to disclose such a change of ownership as satisfies the statute. R. S., sec. 5178. This statutory provision is that, “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 had 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 creditors of the vendor, or subsequent purchasers in good faith,” etc.
The general rule is, that what is a reasonable time is a mixed question of law and fact, which under proper-instructions of the court ought to be submitted to the jury. There are, however, two exceptions to this rule, first, where there are fixed and certain rules for its. determination by the court ; and, second, where theuncontroverted evidence so clearly proves the issue that, there is really no question in respect to it, to be submitted to the jury. In such cases the question may be-treated as one of law and passed upon by the court, without any encroachment on the province of the jury., Skeen v. Engine Co., 34 Mo. App. 485 ; 1 Greenleaf, Ev., sec. 40; Gammon v. Abrams, Adm'r, 53 Wis. 323; Johnson v. Agt. Co., 20 Mo. App. 100. The admitted, facts of this case bring it within the latter of these-exceptions. In our opinion, whether the seven days-was a reasonable time in which to make the change of.' possession, regard being had to the situation of the-property, was a question of law for the court. There was no disputed fact in the case for the determination of the jury. As it appeared from the undisputed facts of the case, that the sale in question was not accompanied by a delivery in a reasonable time, regard being-had to the situation of the property, it was under the-statute fraudulent and void, and hence the court did. not err in declaring as a matter of law that the relator-was not entitled to recover. Lesser v. Boekhoff, 38 Mo. App. 445; Knoop v. Distilling Co., 26 Mo. App. 303; Wright v. McCormick, 67 Mo. 426 ; Stewart v. Nelson,. 79 Mo. 524. If a husband can by a bare secret unrecorded bill of sale invest his wife with the title to his personal property and thus defeat the just claims of his creditors, then, indeed, the statute must be a vain and. meaningless enactment.
The judgment must be affirmed.