8 Mo.App. 61 (Mo.App. 1879), Cordes v. Straszer

Citation:8 Mo.App. 61
Opinion Judge:BAKEWELL, J.
Party Name:JOHN F. CORDES, Appellant, v. GEORGE STRASZER ET AL., Respondents.
Attorney:BROADHEAD, SLAYBACK & HAEUSSLER, for the appellant. A. McELHINNEY, for the respondents.
Case Date:November 18, 1879
Court:Court of Appeals of Missouri
 
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Page 61

8 Mo.App. 61 (Mo.App. 1879)

JOHN F. CORDES, Appellant,

v.

GEORGE STRASZER ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 18, 1879

1. A conveyance collusively made between debtor and creditor, professedly to secure an indebtedness which does not exist, is void as to other creditors, though it covers and includes a real indebtedness less than that named in the conveyance.

2. The rule that oral testimony is inadmissible to vary the terms of a written instrument, applies in suits between the parties, but cannot be invoked to affect the rights of third parties.

3. It having been shown that the grantor had combined with the grantee to hinder creditors, subsequent declarations of the grantor as to the motives inducing him to make the conveyance are admissible in an action by the creditors.

4. It is discretionary with the trial court whether leading questions be allowed.

5. The giving of an instruction which cannot prejudice the appellant, though not warranted by the evidence, is not sufficient ground for a reversal.

6. An appellate court will not pass upon the question as to the propriety of giving an instruction to the jury after the submission of the cause, unless the attention of the trial court was called to the alleged error, in the motion for a new trial.

APPEAL from the St. Louis Circuit Court.

Affirmed.

BROADHEAD, SLAYBACK & HAEUSSLER, for the appellant.

A. McELHINNEY, for the respondents.

OPINION

BAKEWELL, J.

This is an action by the mortgagee in a chattel mortgage, against a constable and certain creditors of the mortgageor, for damages for levying upon and selling under attachment the mortgaged property.

There was evidence in the case tending to show that one Reus, a farmer, owed $500 to the plaintiff. He had personalty worth about $1,600, and owed debts, and his creditors were threatening suit. It was agreed between Cordes and Reus, for the purpose of securing Cordes and keeping off the other creditors, so as to enable Reus to make his crop, in which event he hoped and intended to pay every one in full, that Reus should execute to Cordes a mortgage upon all his personalty, to secure a note for $1,000. Five hundred dollars was to be paid to Reus by Cordes, and at once returned; and Cordes says he had the intention of letting Reus have money from time to...

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