Wangler v. Franklin

70 Mo. 659 | Mo. | 1879

Sherwood, C. J. —

1. conditional sale of personalty. Where property is sold upon condition that the title is to remain in the seller until the purchase money is paid, this contract is a valid one, and will bo respected and enforced by the courts even against a bona fide purchaser. Robbins v. Phillips, 68 Mo. 100, and cases cited. Section 5, page 280, 1 Wag. Stat., in relation to fraudulent conveyances, has no application to this case. Miller v. Bascom, 28 Mo. 352.

2. replevin: attachment: inter plea: estoppel. Two remedies are open to a party whose property is seized by an attaching creditor as the property of a third person in possession of it. He may either, under statutory provisions, interplead for the property, (1 Wag. Stat., § 52, p. 192,) or he may resort to his action of replevin. Burgert v. Borchert, 59 Mo. 85. We are not of opinion that plaintiff lost any right he previously possessed to sue in replevin, by reason of his asking and obtaining leave to interplead in the attachment suit of Bemis, Bro. & Co. against Hursh, Graham & Co., since he did nothing more in the ease than this, nor was he made a party to the action, nor any judgment rendered against him. The permission granted to plaintiff to interplead in that suit was simply a recognition of a right which the statute itself had previously granted, and which the court could neither confer nor take away. The case of Richardson v. Jones, 16 Mo. 177, is totally unlike this, for there judgment actually went against the interpleader. Nor does this case bear the remotest analogy to those cited by defendants, as showing that a party may be bound by a judgment where ho has an opportunity to control and manage the pending litigation; for Wangler owed no duty to the defendants in the attachment suit; was not bound to protect them from any liability, and consequently, there is no basis in this case on which to lay the rule asserted in Strong v. Ins. Co., 62 Mo. 289, and similar cases.

We find no objection either to instructions given or those refused, and should not, perhaps, reverse the judgment if we could find any evidence in the record showing the amount in which the plaintiff was damaged ; as nothing of the kind appears, we shall reverse the judgment and remand the cause with directions to enter judgment for plaintiff as of the date of the original judgment but without damages.

All concur.