2 Mo.App. 295 (Mo.App. 1876), State v. Nauert

Citation:2 Mo.App. 295
Opinion Judge:LEWIS, J.
Party Name:THE STATE OF MISSOURI, use of GEORGE BINDBEUTEL, Respondent, v. HENRY N. NAUERT et al., Appellants.
Attorney:Slayback & Haeussler, for appellants, Gottschalks, for respondent,
Case Date:June 06, 1876
Court:Court of Appeals of Missouri
 
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Page 295

2 Mo.App. 295 (Mo.App. 1876)

THE STATE OF MISSOURI, use of GEORGE BINDBEUTEL, Respondent,

v.

HENRY N. NAUERT et al., Appellants.

Court of Appeals of Missouri, St. Louis.

June 6, 1876

1. An intent to hinder, delay, or defraud creditors is sufficient to invalidate a mortgage. It is not necessary that there be also combination and confederation between the mortgagor and mortgagee.

2. It is error to instruct that, in order to render a mortgage void, there must have been an intent to " hinder, delay, and defraud creditors." The word " " or" should be used, instead of " and." Such error is not cured by another instruction to the effect that an intent to " hinder and delay" will suffice.

3. Where part only of certain mortgaged property is taken in execution against the mortgagor, and the mortgagee gives notice of his claim, stating the value of all the property, whereupon the officer takes an indemnifying bond, reciting the value according to the notice, the obligors in the bond are not estopped by such recital, but may show that the property taken was of less value.

4. A constable having sold mortgaged property under execution, and paid the proceeds to the mortgagee, it was erroneous to exclude evidence of such payment, for the defense, in an action by the mortgagee for damages resulting from the seizure and sale.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Slayback & Haeussler, for appellants, cited: Lodge v. Laumel's Exr., 50 Mo. 204; State v. D'Oench, 31 Mo. 453; Reed v. Pelletier, 28 Mo. 173; State v. Tucker, 31 Mo. 445; Hopkins v. Sievert, 58 Mo. 201; Johnson v. Sullivan, 23 Mo. 414; Nury v. Merriman, 45 Mo. 500; Roustong v. Pacific R. R. Co., 45 Mo. 236; Young v. Kelly, 9 Mo. 50; Baker v. Stonebreaker, 36 Mo. 338.

Gottschalks, for respondent, cited: Wag. Stat. 1058, sec. 4; State v. Tasker, 31 Mo. 451; Meyers v. Chicago, Rock Island & Pacific R. R. Co., 59 Mo. 223; Prewitt v. Humes, 59 Mo. 325; Hayden v. Smith, 31 Mo. 569; Cason v. Murray, 15 Mo. 379; Burgert v. Borchert, 59 Mo. 80; Ensworth v. King, 50 Mo. 477.

OPINION

LEWIS, J.

John Stamm executed a mortgage upon certain saloon fixtures and furniture, to secure payment of two promissory notes for $500 each, in favor of plaintiff's usee. Defendants Nauert and Kalb afterwards sued out an attachment against Stamm for a debt of $30...

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