State ex rel. Bindbeutel v. Nauert

• Decision Date: 06 June 1876
• Citation: 2 Mo.App. 295
• Parties: THE STATE OF MISSOURI, use of GEORGE BINDBEUTEL, Respondent, v. HENRY N. NAUERT et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 295

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

v.HENRY N. NAUERT et al., Appellants.

St. Louis Court of Appeals, Missouri.

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

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, under which they caused to be seized and sold part of the same property. Plaintiff's usee made claim in accordance with the act of March 3, 1855, whereupon defendants gave the indemnifying bond, in the penal sum of $2,000, upon which this suit is founded. Plaintiff obtained judgment for $1,164.40.

The first instruction given for the plaintiff was as follows:

1. “The court instructs the jury that, to render the mortgage read in evidence void as to the creditors, the same must have been executed and received by virtue of a confederation and combination between Stamm and Bindbeutel for the purpose of hindering, delaying, and defrauding the creditors of said Stamm; and if the jury believe from the evidence that no such combination or confederation existed between said Bindbeutel and said Stamm, but that said Bindbeutel took said mortgage with the view only of securing his own claim against said Stamm, and had the same properly recorded in the recorder's office of St. Louis county before the levy of the constable, then said mortgage is good against the creditors of said Stamm, so far as the question of fraudulent intent is concerned, provided the jury believe from the evidence that the debts secured by said mortgage are bona fide and owing.”

This instruction was fatally wrong. “Confederation and combination” were not required, under the law, to render the mortgage void as to creditors. Two parties may coincide in intent, and yet neither combine nor confederate. The intent to hinder, delay, or defraud creditors was all that the defendant had to establish in order to defeat the plaintiff's claim. Burgert v. Borchert, 59 Mo. 80. Another error, in itself conclusive against the instruction, appears in the use of the word “and” instead of “or” in the expression ““hindering, delaying, and defrauding.” The parties might have intended to hinder or delay Stamm's creditors, and yet not to defraud them. When the force of an instruction is controlled by a word different in meaning, as well as in form, from that used in the statute, the whole must fail before the statutory test. It is no answer to say that the instruction was “in direct response to the defendant's allegation that said mortgage was made for the purpose of hindering, delaying, and defrauding.” The plaintiff's traverse of this allegation, using the same phraseology, simply contained a negative pregnant. That this was overlooked in the court below furnishes no excuse for reviving the effect of the vice in other parts of the record.

Respondent's counsel insist that “this instruction is a verbatim copy of one expressly approved by our Supreme Court,” citing, State, to use of Hayden, v. Smith, 31 Mo. 569. The printed report of that case fails to sustain the assertion. The first...