Cordes v. Straszer

Decision Date18 November 1879
PartiesJOHN F. CORDES, Appellant, v. GEORGE STRASZER ET AL., Respondents.
CourtMissouri Court of Appeals

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.

BAKEWELL, J., delivered the opinion of the court.

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 time, as he would want it, to carry on his farm. In accordance with this understanding, Cordes and Reus went to a notary, by whom the mortgage and note were drawn up for $1,000. The papers were executed by Reus and the $500 paid by Cordes in the presence of the notary, with whom the deed was left, with directions to record it. The old notes held by Cordes were also then destroyed. Immediately on leaving the presence of the notary, Reus returned to Cordes the $500; and this sum was credited on the back of the note.

There was a verdict and judgment for defendants.

1. The instructions given are numerous, and so lengthy that it would be inconvenient to set them out. They seem to declare the law applicable to the case in a way of which appellant has no reason to complain.

If the chattel mortgage was contrived by Reus and Cordes with intent to hinder, delay, or defraud the creditors of Reus, or to protect his property from his other creditors, or to deceive his creditors as to the amount of his encumbrance, the court declares the mortgage void as to them, even though Cordes accepted the mortgage to secure a bona fide debt to him. We see no error in this. A conveyance made in good faith is not void merely because it delays some creditors, or because it is intended to delay them. But a conveyance made in bad faith, by collusion between the debtor and creditor, to cover up property, by naming and professing to secure an indebtedness not really existing, is void as to creditors; and the fact that it also names a real, existing indebtedness, and is really made to secure that real debt, will not save the deed. The fact that, at the moment the note was executed for $1,000, Reus had in his possession that amount of Cordes's money, is immaterial, if $500 had been received with the understanding that it should be at once returned to Cordes, and if this was done. Such a proceeding would be a mere trick, and could have no effect to validate the mortgage.

2. It is contended that the testimony of Reus, the maker of the mortgage, was incompetent; that he should not have been permitted, against the objection of plaintiff, to show that the amount of his indebtedness was not correctly set out in the deed. The rule that oral evidence is inadmissible to vary the terms of a written instrument is...

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  • Landau v. Schmitt Contracting Co.
    • United States
    • Missouri Court of Appeals
    • April 4, 1944
    ...not evpressed therein. Tomlinson v. Marshall, 208 Mo. App. 381, 236 S.W. 380; McKee v. City of St. Louis, 17 Mo. 184, 190; Cordes v. Straszer, 8 Mo. App. 61, 63; Brenner v. Socony Vacuum Oil Co., 236 Mo. App. 524, 158 S.W. (2d) 171; Slinkard v. Lamb Const. Co., 212 S.W. 61, affd. 286 Mo. (e......
  • Took v. Wells
    • United States
    • Missouri Supreme Court
    • September 28, 1932
    ... ... 27. (c) ... Instructions which are so irrelevant that they could not have ... misled the jury will not be grounds for reversal. Cordes ... v. Straszer, 8 Mo.App. 61; Valle v. Picton, 91 ... Mo. 215; Nelson Mfg. Co. v. Mitchell, 38 Mo.App ... 329; Brown v. Davis, 32 S.W.2d ... ...
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    • United States
    • Missouri Court of Appeals
    • April 4, 1944
    ...was not evpressed therein. Tomlinson v. Marshall, 208 Mo.App. 381, 236 S.W. 380; McKee v. City of St. Louis, 17 Mo. 184, 190; Cordes v. Straszer, 8 Mo.App. 61, 63; Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 158 S.W.2d 171; Slinkard v. Lamb Const. Co., 212 S.W. 61, affd. 286 Mo. (en banc)......
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