Wise v. Wimer

• Decision Date: 31 March 1856
• Citation: 23 Mo. 237
• Parties: WISE, Respondent, v. WIMER, Appellant.
• Court: Missouri Supreme Court

23 Mo. 237

WISE, Respondent,

v.WIMER, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. In a suit brought by an assignee against the sheriff for improperly levying an attachment in favor of a creditor of the assignors, the record of the attachment suit (the assignee not having been a party thereto) is inadmissible in evidence to show fraud in the assignment.

2. To make an assignment for the benefit of creditors void for fraud, the fraud must be brought home to the assignee.

Appeal from St. Louis Court of Common Pleas.

This was an action brought to recover the value of certain personal property, which defendant had seized and carried away, and of which plaintiff claimed to have been in the lawful possession as owner in trust for the benefit of the creditors of Osborne, Camp & Co., they having made an assignment of the same for the benefit of their creditors. The defendant set up in his answer that he made the seizure complained of, as sheriff of St. Louis county, by virtue of a writ of attachment in his hands against said Osborne, Camp & Co.; that his levy was made before the execution and delivery of the deed of trust to plaintiff; also, that said deed was made with intent to hinder, delay and fraud the creditors of said Osborne, Camp & Co.

The cause was tried by the court, and judgment was given for the plaintiff. The facts, as found by the court, sufficiently appear in the opinion of this court. In the course of the trial defendant offered in evidence the record of the proceedings in the attachment suit in which the levy was made; it was ruled out as inadmissible.

Knox & Kellogg, for appellant, cited 11 New. Hamp. 55; 2 Hill, 628; 2 Shepley, 303; 16 Pick. 33; 17 Mass. 110; 13 Met. 304, 200; 11 Pick. 352; 10 Serg. & Rawle, 201; 17 Pick. 140; 2 Watts & Serg. 147; 1 Hoff. 511; Smith, 190; 17 Ver. 271; 6 Watts & Serg. 94; 5 Mo. 463.

Krum & Harding, for respondent, cited 18 Mo. 13; 19 Mo. 17.RYLAND, Judge, delivered the opinion of the court.

From the finding of the facts by the court in this case, it is obvious that, whether the deed of assignment be such an instrument as is required by law to be recorded or not in order to give it validity, there was such a delivery here of the assigned property by the assignors and a possession of it by the assignee as to do away with the necessity of recording the instrument. The assignment was made on the 14th July, 1854. The assignee, Wise, asked for the key of the shop and premises of Osborne, Camp & Co., which was delivered to him. He thereupon delivered the key and assignment to Mr. Lord, informing Lord that Osborne, Camp & Co. had made an assignment to him (Wise), and asked Lord if he would take possession of the property named in the assignment for him (Wise), and keep possession thereof as Wise's agent. Lord agreed to do so; and about five o'clock in the evening went to Osborne, Camp & Co.'s place of doing business with the key, and took possession of the premises. The said place of business had been kept open, as usual, during the whole of said 14th day of ...