195 Mo. App. 376 | Mo. Ct. App. | 1917
This is a proceeding involving a construction of the “Bulk Sales” Law, found in Laws 1913, page 163.
Plaintiff Ward & Co. filed an answer to claimant Maupin’s claim. To this answer claimant Maupin filed a reply, in which she pleaded the ninety day Statute of Limitations prescribed in section 4a by the Act of 1913, which reads as follows:
“No proceeding at law or in equity shall be brought against any vendee to invalidate any sale or transfer of property contemplated by this act after the expiration of ninety days from the date of delivery of such property to any such vendee.”
Plaintiff’s action through the seizure and execution sale made by the sheriff was a “proceeding” in the sense of the statute (Riley Pa. Oil Co. v. Symmonds, 195 Mo. App. 111). For seizure of the property and transfer to a stranger were acts taken to invalidate the sale to claimant by Stutzman. And in the case cited, in speaking of the Statute of Limitations here invoked, we said that, “After the expiration of that limited period he (the purchaser) cannot be disturbed in Ms purchase so far as any violation of that act is concerned.” And that “The intention of the statute is to preserve an equality among the creditors under section 1, during the period limited for proceedings
But plaintiff, by a course of reasoning we cannot approve, has developed a theory that this limitation section, broad and comprehensive as it is, only applies to proceedings begun under section 2, of the act. The first section simply provides that all sales of a stock in bulk, or in greater part, shall be fraudulent and void unless the vendee shall demand of the vendor a list of his creditors and then, several days before he (the vendee) consummates the sale, he shall notify each of these creditors of his proposed purchase, of the terms of the sale, the parties thereto and the place and tim'e where and when it will be consummated. This section is open to all.creditors. But section 2 of the act, provides an additional remedy for that class of creditors who may be able to identify goods they have sold .to the vendor. [Riley Pa. Oil Co. v. Symmonds, supra.]
We are at a loss to understand why the section limiting a proceeding to invalidate a sale in bulk should be confined to, the second section of the act. There is nothing in either of the sections to indicate such intention and we cannot discover any reason why that construction should be given to the' law. Nor do we see how Supply Co. v. Smith, 182 Mo. App. 212, in any way bears upon the question. In Muller v. Hubschman, 96 Atl. (N. J.) 189, 190, it is said that, “When the Legislature saw fit ’to give this new and drastic remedy — a remedy which confounds the innocent and the guilty because of the difficulty of discriminating between them —it did not think- it wise to allow it to be applied, except for that limited period.” Our limitation period is the same as in the Statutes of Pennsylvania and New Jersey; and there it has been applied in cases arising in many respects as in the present instance. [Wilson v. Edwards, 32 Pa. Supr. Ct. 295, 311; Ritter v. Wray, 45 Pa. Supr. Ct. 440, 449; Schumaker Co. v. Riddle, 52 Pa. Supr. Ct. 6; Dickinson v. Harbison, 72 Atl. 941.]
In the first of these cases the sale was attacked by a sheriff’s levy as in this case, and the court said (p.
These cases confirm our statement in Riley Pa. Oil Co. v. Symmonds, supra, that the expression' in the statute we are considering, r<< proceeding in law or equity,” includes the levy, of an execution upon the property sold as was done in the case before.us.
We have not lost sight of plaintiff’s suggestion that this limitation section refers to a proceeding at law or in equity “against any .vendee;” but we think that in the statutory sense, though the proceeding was by an execution on a judgment against the vendor, in which judgment the vendee was not concerned; yet when the’ levy was made on the goods after they were purchased by the vendee, it then became, in the statutory sense, a proceeding “against any (the) vendee to invalidate the sale.”
The judgment is reversed.