Bevans v. Bolton
| Citation | 31 Mo. 437 |
| Parties | JOSEPH J. BEVANS, Respondent, v. WILLIAM BOLTON et al., Appellants. |
| Decision Date | 31 March 1862 |
| Court | United States State Supreme Court of Missouri |
1. Under the 8th section of the Statute of Fraudulent Conveyances, where the mortgagor or grantor in a deed of trust of personal property retains possession, it is sufficient that the deed be recorded in the county in which the mortgagor or grantor resides.
2. The removal of the grantor or mortgagor with the personal property to another county will not affect the title of the mortgagee or trustee, nor their right to the possession for the purpose of paying the debts secured by the deed. And as against creditors, residents of the same county with the grantor, it is not necessary that the deed be again recorded in the county to which the mortgagor removes.
3. If the mortgage or deed of trust be not recorded, and the mortgagor retain possession of the personal property, the deed will be fraudulent as to the creditors of the mortgagor, although they have actual notice of the execution of such deed.
Appeal from St. Louis Court of Common Pleas.
This was an action for the possession of personal property, brought against G. W. Manning, constable of St. Louis township, who, by virtue of executions issued by a justice of the peace in favor of the other defendants, and against James D. Kincaid, had levied upon a slave girl, named Fanny, as the property of said Kincaid. The plaintiff claimed title under a mortgage deed made by James D. Kincaid and William C. Kincaid, executed at Bowling Green, Pike county, August 4, 1858, by which lands in the counties of Pike and Audrain, together with personal property, including the slave Fanny, were conveyed to the plaintiff to secure the payment of an indebtedness to sundry persons. The grantors and grantee, at the date of the deed, resided in Pike county. The deed was recorded in Pike county, August 4, 1858; in Audrain county, August 26, 1858, and in St. Louis county, February 22, 1859.
About November 1, 1858, James D. Kincaid removed his family to St. Louis, and brought with him the girl Fanny. In December, 1858, Bolton & McCormick obtained judgments against James D. Kincaid, before Justice Waite of St. Louis county, upon which executions were issued and placed in the hands of defendant Manning, who, by order of the plaintiffs in the execution, levied upon the slave Fanny, on December 28, 1858.
Upon the trial, the plaintiff offered in evidence the deed from James D. and William C. Kincaid to himself, which after describing the property conveyed, and the debts intended to be secured, contained the following provisions:
“Now the object and intention of this deed is to secure the payment of the aforesaid notes, and to secure the aforesaid Bevans, Bennett, Roberts, et al., against all loss and liability in case the said notes shall not be paid by us, and they or either of them shall be forced to pay any or either of said notes; and if the said J. D. or W. C. Kincaid, or either of them, or any person for them, shall pay the said notes or drafts, then this deed shall be void, otherwise to be in full force, and the said Joseph J. Bevans is hereby authorized and empowered to superintend and see to the disposal of the said personal property heretofore specified, that the proceeds may go towards liquidating and satisfying the aforesaid notes.”
The defendants objected to the admission of this deed in evidence, for the reason that it was fraudulent upon its face. The objection was overruled, the deed admitted, and defendants excepted.
Evidence was given as to the good faith of the parties and the fairness of the transaction. The debts secured by the deed were due and unpaid.
At request of the plaintiff, the court instructed the jury as follows:
If the jury believe from the evidence that the slave Fanny, described in the petition, is the same slave described in the deed from Kincaid to Bevans; that said deed is a genuine deed, and was executed by said Kincaid for the purpose and consideration expressed in said deed; that said Kincaid and Bevans, at the time of the execution of said deed, both resided in Pike county, Missouri, and continued to reside there until after said deed was recorded in said Pike county, and that said slave remained in said county during all of said time; that said deed was recorded in said county on the 4th day of August, 1858; that said Kincaid remained in said Pike county until about the month of October, 1858, when he removed with his family to St. Louis, taking said slave with him, but with the intention of removing back with said slave to Pike county during the next year, and continued to reside in St. Louis until the commencement of this suit; and that the debts described in said deed, or any portion of them, were due and unpaid at the commencement of this suit; and that defendants Bolton and McCormick, at the date of said deed, did, and ever since have resided in said Pike county, then the jury should find for the plaintiff.
Defendants asked the following instructions, which were refused:
1. Unless the jury believe from the evidence that the condition of the deed of trust has been broken, they must find for defendants; the plaintiff Bevans not having, unless the condition be broken, such a title as will support the suit.
2. If the jury believe from the evidence that the negro girl Fanny was never delivered by James D. Kincaid and William C. Kincaid to plaintiff; and that the said James D. Kincaid never parted with the possession of said girl until she was seized under the said executions by defendant Manning; and if the plaintiff has not shown by evidence sufficient to satisfy you that the said deed was made in good faith, and without any intent to defraud creditors or subsequent purchasers, then you must find for the defendants.
3. If the jury believe from the evidence that the possession of the negro girl Fanny was not delivered to plaintiff, and not retained by him after the execution of said deed; and you further believe that the possession of her was retained by said James D. Kincaid, and that he exercised acts of ownership over said slave in bringing her with his family from Pike county to St. Louis county, and retained her in his family as a servant, then you must find for the defendants, and it makes no difference whether the deed of trust was recorded or not.
4. If the jury believe from the evidence that the possession of the negro female slave, named Fanny, was never delivered to and retained by Joseph J. Bevans, plaintiff, under the deed of trust executed by James D. Kincaid and William C. Kincaid to him, and in evidence before you; and that...
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Bentrup v. Johnson
...such condition, and that it will be so assumed. It is the fact of not recording which avoids the deed. As far back as the case of Bevans v. Bolton, 31 Mo. 437, was held that an unrecorded mortgage of personal property is absolutely invalid against a creditor or purchaser if it is not record......
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...the mortgagor resides, though the mortgaged property may be situated in another county. [Fahy v. Gordon, 133 Mo. 414, 34 S.W. 881; Bevans v. Bolton, 31 Mo. 437.] evidence in behalf of interpleader, uncontradicted by plaintiffs, was that defendant, James Sally, resided in the city of Rolla i......
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Bentrup v. Johnson and Lehmann.
...such condition, and that it will be so assumed. It is the fact of not recording which avoids the deed. As far back as the case of Bevans v. Bolton, 31 Mo. 437, it was held that an unrecorded mortgage of personal property is absolutely invalid against a creditor or purchaser if it is not rec......