Wachtel v. Ewing

82 Mo. App. 594, 1900 Mo. App. LEXIS 283

• Court: Missouri Court of Appeals
• Decided: February 5, 1900
• Status: Published

Opinion

ELLISON, J.

This is an action of replevin for thirteen barrels of whiskey in which plaintiff prevailed in the trial court. The defendant is the sheriff of Vernon county and •had the property in possession by reason of a seizure under a writ of attachment issued from the circuit court of that county in the case of Bryan against Wiseman, wherein the latter was charged to be indebted to the former. Plaintiff claims to have purchased the property of Wiseman prior to the levy of the attachment.

The following are the facts substantially as the evidence for plaintiff tends to establish them; the verdict being for plaintiff we accept them as true. The whiskey was the property of Wiseman who distilled it, but was in the government bonded warehouse, the revenue tax not being paid thereon. While thus in the possession of the- government for the purpose aforesaid, plaintiff purchased it of Wiseman, receiving from him an order on the store-keeper and gauger for the same; also statement of number of barrels and contents made out ou the gauger’s report. Plaintiff then sent a draft for the tax, amounting to $646.69 to the collector of the revenue and asked to have the barrels “stamped out” and turned over to him. In a few days the proper government officers (deputy collector and store-keeper) appeared and began to “stamp out” the whiskey. While they were thus engaged, plaintiff came into their presence and presented his order from Wiseman. ■ One of the officers took it, saying it was' all right. When the officers finished, stamping, one of them turned to plaintiff and said: “here is your whiskey.” Just at that moment the deputy sheriff announced that “I attach this whiskey,” and took it away with teams which he had in* waiting.

The foregoing made out a complete sale and change of possession before the officer’s attachment was levied or offered to be levied. A sale of the whiskey in bond by the owner by an order for it which is made known to the officer in immediate possession was sufficient change of possession of itself. Conrad v. Fisher, 37 Mo. App. 352; Halderman v. Stillington, 63 Mo. App. 212. But here we have, in addition, an actual turning over by the officer to the vendee. The court therefore properly refused defendant’s instruction B.

2. A question of fraud with intent to hinder and delay creditors was made as to Wiseman and a knowledge of such intent'on the part of plaintiff at the time of his purchase. This issue was submitted to the jury, the instructions in that respect for each party were given by the court as asked. We must therefore accept the verdict of the jury as conclusive.

There was an instruction offered by defendant and refused which peremptorily directed the jury to find for defendant. This was, presumably, on the ground, additional to what we have already noticed, that there was an attachment writ issued at the suit of Bryan and directed against Wise-man’s personal property generally. But the evidence for plaintiff tends to prove that he did not know of such writ being outstanding when he purchased, and it is conceded that the writ was returned. The writ under which the present attachment was levied was an alias issued after the sale to plaintiff in the manner aforesaid.

3. There was evidence tending to show that an attachment of this property had been attempted, prior to the sale to plaintiff, by the sheriff going to the warehouse and posting up a notice on the outside to that effect. But, passing by any question of the effect of such a proceeding as a levy and seizure, the levy was evidently abandoned and the writ returned. The levy under which this claim is made is under an alias writ issued just before the seizure made thereunder, as has just been stated.

We discover no ground justifying an interference of the judgment and it is affirmed.

All concur.