Balke v. Swift
| Decision Date | 31 July 1873 |
| Citation | 53 Mo. 85 |
| Parties | JULIUS BALKE, Defendant in Error, v. CHAS. SWIFT, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court.
Trefren & Thomson, for plaintiff in error.
Gage & Ladd, for defendant in error.
The bill of sale, not being followed by possession or recorded, was absolutely void as to creditors and subsequent purchasers. (W. S., 281, § 10.)
The certificate of the recorder says the acknowledgment was on the mortgage when it was filed for record, to wit: Aug. 23rd. The date, then, of the acknowledgment is clearly a clerical error.
Action for the recovery of specific personal property; petition in usual form.
The defendant, Swift, in his answer, set up a claim to the property in controversy, a billiard table, as the bailee thereof under one G. B. Wood, whom he alleged was the owner, and denied that plaintiff was entitled to recover. The reply was a mere denial of the allegation of the answer. The cause was tried by the court, a jury having been waived, and resulted in a judgment for the plaintiff.
The evidence tended to show that Meredith B. Hedges bought the property of Julius Balke, paid a portion of the purchase money down, and was to execute his notes secured by mortgage on the property for the residue; that he succeeded, however, by urging the necessity of haste in opening his saloon, in obtaining possession of the table, under the promise of executing the note and mortgage, the execution of which was for some time delayed.
The mortgage was executed on the 15th day of July, 1866, but was not delivered to Ensel, the agent of Balke, for some weeks afterwards; but immediately upon such delivery the mortgage was forwarded to Independence to be recorded, which was done on the 23rd of August.
The certificate of acknowledgment it is true, bears date December 5th, 1866, but the certificate of record recites that the mortgage with the acknowledgment thereon, was duly recorded August 23rd, 1866.
I pass this without further comment, regarding it as a mere clerical error, and not as constituting any valid ground of objection to the introduction of the deed in evidence.
It also appears, that Hedges the next day, i. e., the 16th day of July, after he had signed the mortgage, executed and delivered to Wood a bill of sale for the property in question, together with other property, amounting in the aggregate to over $2,000 in value, to secure him for an advancement of $1,055 to...
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... ... 646; Davidson v. Real ... Estate & Inv. Co., 249 Mo. 474, 503; First National ... Bank v. Anna Burns, 199 S.W. 282; Balke v ... Swift, 53 Mo. 85; Bank v. Varnum, 176 Mo.App ... 78; Todd v. Ferguson, 161 Mo.App. 624; Leahy v ... Merc. Trust Co., 247 S.W. 397; ... ...
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...or Rayburn could, therefore, sell the bonds and pass the title. Cook v. Clippard, 12 Mo. 379; Layson v. Rogers, 24 Mo. 192; Balke v. Swift, 53 Mo. 85; Travis v. Bishop, 13 Met. 304; Bryson v. Penix, 18 Mo. 13; Doe v. Allsop, 5 Barn. & Al. 142. 5. If the company had any right to these bonds ......
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... ... ground only. [Pattison v. Letton, 56 Mo.App. 325; ... Studebaker Mfg. Co. v. Elsey-Hemphill Co., 152 ... Mo.App. 401, 133 S.W. 412; Balke v. Swift, 53 Mo ... 85; Rock Island National Bank v. Powers, 134 Mo ... 432.] If it is fraudulent in fact or under State law it comes ... within ... ...
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Wood v. Ensel
...subject matter of this suit, a billiard table, was in litigation heretofore between Julius Balke and Chas. Swift. The case was reported in 53 Mo. 85. In consequence of the admission in evidence of the record of that case, the plaintiff took a non-suit, and, after vainly endeavoring to set t......