Hewson v. Tootle

72 Mo. 632

• Court: Supreme Court of Missouri
• Decided: October 15, 1880
• Status: Published

Opinion

Henry, J.

1. Fraudulent Conveyance: possession and power of sale in mortgageor. In an attachment suit by Tootle and others against Mr. Yogler, Margaret Hewson filed an interplea c^aimin& tim goods seized in the attachment su^> under a chattel mortgage, which the answer to the interplea alleged to have been made in fraud of creditors. It is in usual form, but contains the following: “The said Jno. 0. Yogler has this day granted, bargained and sold, and by these presents does grant, bargain and sell unto said Margaret Hewson, administratrix, as aforesaid, the entire stock of goods now ■owned by said Jno. 0. Yogler, and kept and offered for sale at the store-room now belonging to the estate of E. Hewson, deceased, in Dayton, Cass county, Missouri, including all the entire stock of dress goods, dry goods, notions and fancy goods, hats and caps, boots and shoes and groceries, which said Jno. C. Yogler purchased from Margaret Hewson, administratrix as aforesaid, as well as all the stock he, the said Jno. C. Yogler, heretofore owned, and which is now added to the said stock purchased as afoiesaid, it being the full intent and purpose of this instrument to affect all the entire stock of goods which the said Jno. O. Yogler now has, as well as that which may hereafter be added thereto during the continuance of these presents ; * * but should the said Jno. C. Yogler fail or refuse to pay the said note, then the said Margaret Hewson, administratrix as' aforesaid, together with such assistance as she may see fit to procure, may take and remove the said stock of goods above described. * *

She may sell or dispose of the stock of goods, * * and after paying the expenses of said sale, render the overplus, if any, to the said Jno. C. Yogler.”

It does not “ appear, on the face of the mortgage, either expressly or by necessary implication, that the mortgageor was to retain possession with a power of sale.” Weber v. Armstrong, 70 Mo. 218. From the fact, that not only the goods sold to Mrs. Hewson, the consideration for the debt secured by the mortgage, but also all of a stock then owned and added to the stock purchased, and all that he might thereafter add to the stock during the existence of the mortgage, were by its express terms embraced therein, it is not a necessary inference that a power of disposal was given to the moi’tgageor. It only affords ground for a conjecture. A stock might be “added to ” without first being “ diminished.” The word “ added ” is not the equivalent of the word “ replenished.” The court thus far did not err in refusing to declare the mortgage void on its face.

2_• when void as matter of law. Nor could the court have properly declared it void,, because, with the knowledge and acquiescence of Mrs. Hewson, Yogler remained in possession of, anq 80]<3; the goods in the usual course of his business, as a retail dealer. The evidence of herself and another witness uncontradicted, was that he sold under an agreement with her that the proceeds of sales were to be applied to the payment of her note, and it also appeared that before the attachments were levied, Yogler gave her possession of the goods to hold underher mortgage. In Johnson v. McAllister’s Assigns., 30 Mo. 327, Judge Scott, delivering the opinion of the court said: “ Our courts do not hear extrinsic evidence in relation to the validity of a. conveyance, and then on such evidence, as a matter of law, pronounce the conveyance void. "When a conveyance on its face is fraudulent and void, the court will declare it so. But when it appears to be fair, and its validity depends on extrinsic evidence, that evidence is submitted to a jury, who will determine, as a matter of fact, whether it is fraudulent or not.” In Weber v. Armstrong, 70 Mo. 217 the same doctrine was distinctly reiterated.

3. Interplea in Attachment: verdict. This cause, on the main issues was tried in exact conformity with the foregoing cases, but a fatal error occurred in another respect. The issue joined was whether the property attached was the property of the interpleader, or not, and the verdict was : “We, the jury, find for the plaintiff $542.75;” and the judgment on that verdict was, that plaintiff have and recover the proceeds arising from the sale of the goods by the sheriff, who is thereby ordered to pay the proceeds to the interpleader. The verdict was not responsive to the issue. Mills v. Thompson, 61 Mo. 407, and the instruction authorizing such a verdict, was erroneous. The judgment was the proper judgment, if the verdict had responded to the issue and been for the interpleader. The judgment is reversed and the cause remanded, to be retried as herein indicated.

All concur.