State ex rel. Cent. Sav. Bank v. Bell

• Citation: 2 Mo.App. 102
• Parties: STATE OF MISSOURI, to use of CENTRAL SAVINGS BANK, Appellant, v. HERBERT BELL et al., Respondents.
• Decision Date: 25 April 1876
• Court: Court of Appeal of Missouri (US)

2 Mo.App. 102

STATE OF MISSOURI, to use of CENTRAL SAVINGS BANK, Appellant,

v.HERBERT BELL et al., Respondents.

St. Louis Court of Appeals, Missouri.

Apr. 25, 1876.

A conveyance of personal property, whether absolute or otherwise in form, and whether recorded or not, may be a good mortgage, as between the parties; but, as to creditors of the grantor, if the instrument be on its face absolute, with nothing indicating an intent to create a mortgage, there must be a change of possession within the terms of the statute to make it effectual for any purpose.

APPEAL from St. Louis Circuit Court.

Affirmed.

Farish & Griffin, for appellant, cited: Plumber v. Guthrie, 76 Pa. St. 455; Turner v. Kerr, 44 Mo. 429; Brant v. Robertson, 16 Mo. 129; Sharkey v. Sharkey, 47 Mo. 543; Holmes v. Farish, 9 Mo. 201; Davis v. Clay, 2 Mo. 161; DesLoge v. Ranger, 7 Mo. 327; Tibeau v. Tibeau, 22 Mo. 77; Wag. Stat. 281, sec. 10.

Doan & Levin, for respondent.

LEWIS, J., delivered the opinion of the court.

Defendant Bell sued one William Freudeman by attachment, which was levied on certain personal property. Plaintiff's usee made claim to the property, whereupon defendant, giving bond under the statute, caused it to be sold. Plaintiff seeks in this suit to recover upon the bond.

At the trial plaintiff introduced in evidence a bill of sale from Freudeman, absolute on its face, conveying the property to the cashier of the Central Savings Bank, for the consideration of $1,000. Also, testimony tending to prove that the transaction was, in fact, intended by the parties to be a mortgage, to secure a loan of $1,000, with the interest, for which Freudeman, at the same time, gave his note. There was no delivery of the property or change of possession, but the bill of sale was acknowledged and duly recorded some time prior to the issuing of the attachment. Plaintiff prayed the court to declare the law as follows:

“If the court finds from the evidence that the instrument of writing offered in evidence herein, although on its face a bill of sale of personalty, was intended between the parties thereto to be, and was, in effect, an equitable mortgage; and further finds from the evidence that the same was acknowledged and recorded in the county in which the mortgagee or grantor resided at the time of the execution of the same, then the court declares the law to be that the non-delivery of the goods described in said instrument is not of itself fraudulent and void, as against the creditors of the vendee.”

The court refused so to declare the law, and rendered judgment for the defendant; from which the plaintiff appealed.

The question whether an instrument, appearing on its face as an absolute...