Hausmann v. Hope

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 193
• Parties: G. HAUSMANN, Defendant in Error, v. JOHN C. HOPE ET AL., Plaintiffs in Error.
• Court: Kansas Court of Appeals

20 Mo.App. 193

G. HAUSMANN, Defendant in Error, v. JOHN C. HOPE ET AL., Plaintiffs in Error.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

ERROR to Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

On the first day of August, 1881, the firm of Steifel & Ney doing business in Kansas City, were largely indebted to various creditors, among whom were the Bank of Kansas City the Anheuser-Busch Brewing Company, of St. Louis, and the firm of Wallwork & Harris, of Louisville, Ky. On said day Steifel & Ney executed a deed of mortgage on their stock of goods, consisting of whiskey and tobacco, to the plaintiff, Hausmann, to secure the debts owing to said bank and brewing company. This deed was duly recorded, and Hausmann took possession of the property as such mortgagee and retained Steifel and Ney to assist in selling goods. After this, said Wallwork & Harris brought suit in the Jackson circuit court against Steifel & Ney, by attachment, under which the defendant, Hope, as sheriff of said county, seized said goods as the property of Steifel & Ney, whereupon Hausmann brought the present action of replevin for the recovery of the possession of the goods. The goods were re-delivered to Hausmann under the order of delivery made in said action, and he proceeded, as such mortgagee, to dispose of them. On motion, said Wallwork & Harris were permitted to come in and defend. The answer pleaded the facts of the proceeding by attachment, and the recovery of judgment by Wallwork & Harris in said attachment proceedings against Steifel & Ney. The answer alleged that the conveyance by said instrument, alleged by them to be a deed of assignment, was fraudulent as to the creditors of Steifel & Ney; that the debts named therein as owing by them to said bank and brewing company were fictitious and fraudulent, and that more property than was necessary was conveyed by said deed to secure the reputed debts, and that the beneficiaries were already amply secured by collateral securities.

The answer asked that, if it should be ascertained that the debts existed, that the instrument of conveyance in question be declared to be a deed of assignment, and subjected to the course prescribed by the statute in such cases.

The reply tendered the general issue.

After hearing the evidence, the court directed the jury to return a verdict for the plaintiff. A verdict was accordingly returned, and judgment was rendered for the plaintiff; to reverse which the defendants prosecute this writ of error.

FRANK TITUS, for plaintiffs in error.

I. This identical instrument has been adjudicated upon by the United States circuit court for this district, and held to be an assignment for the benefit of all the creditors of Steifel & Ney. Martin v. Hausmann, 14 F. 160: Kellogg v. Richardson, 19 Ib. 70; Clapp v. Dittman, 21 Ib. 15; Perry v. Corby, 21 Ib. 737; Kerbs v. Ewing, 22 Ib. 693. See also Crow v. Beardsley, 68 Mo. 437. If the deed was a valid security at all it was only so for the debts named in it. Beardsley v. Tuttle, 11 Wis. 74; Jones Chat. Mort. sect. 355; Dougherty v. Cooper, 77 Mo. 528.

II. It was improper to take the case from the jury. The testimony clearly showed that both the creditors named in the deed had acted entirely in disregard of it. Goodwin v. Kerr, 80 Mo. 276; Stone v. Spencer, 77 Mo. 356; Cook v. R. R., 63 Mo. 397.

III. The court erred in refusing the instructions asked by plaintiff in error. They were entitled to have the question of fraudulent knowledge or participation of plaintiff and the beneficiaries in the assignment submitted to the jury. Rupe v. Alkive, 77 Mo. 641; Wood v. Carpenter, 101 U.S. 141; Kerr on Fraud, 236; Potter v. McDowell, 31 Mo. 62; Jacobs v. Remsen, 36 N.Y. 668; Burrill on Assignments, (3 Ed.) 142; Shelley v. Boothe, 73 Mo. 74; Wharton on Evid. (2 Ed.) sect. 366, et seq. ; Jaffray v. McGhee, 107 U.S. 361. The remaining questions involved and submitted were also entitled to go to the jury.

C. O. TICHENOR, for defendants in error.

I. The instrument under which plaintiff took possession was either for the security of two creditors, or else it was for all; in either event plaintiff was entitled to the possession. Goodwin v. Kerr, 80 Mo. 276.

II. This court is not called upon to decide what the instrument is. It is not admitted by us to be an assignment for the benefit of all the creditors. The United States circuit court, at last term, dismissed a bill seeking to have such an instrument declared a general assignment, but a certificate of division was given, so there could be an appeal. The authorities sustain the later view of that court. Shelley v. Boothe, 73 Mo. 74; Steele v. Benoist, 37 Mo. 500; Tompkins v. Wheeler, 16 Pet. 118; Cooper v. Brock, 41 Mich. 488; Gage v. Cheesebro, 49 Wis. 486; Carr v. Carr, 52 N.Y. 250; Lawrence v. Neff, 41 Cal. 666; Fouke v. Fleming, 13 Md. 392.

III. A mortgagee of chattels can take possession, and it is legal. The statute, itself, says if he has possession, the mortgage need not be recorded. Rev. Stat. Mo. 148; Pace v. Pierce, 49 Mo. 393.

IV. The mortgagee is not only a depositary, but holds the possession coupled with an interest, so that if the goods are taken from him he can either sue for possession or their value. McCandless v. Moore, 50 Mo. 512. It is no objection that the form is that of a deed of trust. Page v. Pierce, supra. There is no evidence of fraud, and the deed is valid.

PHILIPS P. J.

I. The plaintiff in error insists that the instrument of conveyance by which Steifel & Ney conveyed the goods to Hausmann, was in effect, a deed of assignment, and we are asked to so hold, in the event we should be of opinion that it was not so fraudulent as to other creditors as to wholly avoid its operation. And yet the defendants' counsel has not attached so much importance to this point as to have furnished the court with even the substance of the deed in the abstract of the record. This is not a compliance with rule fifteen of this court, and as heretofore held, we will not go to the transcript to ascertain the character of the instrument. The trial court evidently regarded and treated the instrument as a chattel mortgage to secure the debts of the bank and the brewing company. As every reasonable intendment is to be indulged in favor of the regularity of the proceedings and the correctness of the judgment of the circuit court, until the contrary affirmatively appears, we must accept its conclusion in this respect as correct for the purposes of this review.

II. Regarding the instrument as a chattel mortgage, but two questions arise on this record for our determination: was there any evidence requiring the submission to the jury of the fraudulent intent and purpose of Steifel & Ney in making the mortgage to hinder or delay other creditors? and if so, was there any evidence from which...