Bishop v. O'Connell
| Decision Date | 31 March 1874 |
| Citation | 56 Mo. 158 |
| Parties | DAVID H. BISHOP, Appellant, v. PATRICK O'CONNELL, et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Slayback & Hæussler, for Appellant.
M. Kinealy, for Respondent.
This was an action of replevin. From the record it appears that one Swainson owned a lot of ground on which there was a dwelling house containing furniture. On the last day of August, 1869, while indebted to several persons, he sold and conveyed the house and furniture by deed to the plaintiff, who, on the same day, leased the premises and furniture to him for the term of one year. Swainson still continued in the possession of the premises, house and furniture after the sale in the same manner as before, and there seems to have been no visible change made. He continued his residence in the same manner after the expiration of the lease till November 12, 1870, when defendant O'Connell, as constable, seized the furniture as his property, by virtue of several executions in his hands. Swainson then gave a delivery bond for the forthcoming of the property on a day specified, the plaintiff being one of the sureties on the bond. Immediately after the levy and seizure of the property under the executions against Swainson, the plaintiff instituted this action claiming the furniture as his own. The trial at Special Term was before the court and a jury, and the plaintiff had a judgment which was reversed at General Term, and the plaintiff has appealed the cause here.
Of the eight instructions asked by the defendant, the court gave two. The first told the jury that the sale of the property ty to plaintiff by Swainson was void as against the creditors of Swainson, unless it appeared from the evidence that such sale was accompanied by a delivery of the property sold in a reasonable time, regard being had to the situation of the property, and was followed by an actual and continued change of possession of the property prior to the levy under the execution by defendant O'Connell, and that such change of possession was open and notorious.
By the second, the court instructed the jury that unless the sale of the property mentioned in the petition, and claimed to have been sold to plaintiff by Swainson, was accompanied by a delivery of the property so sold to plaintiff within a reasonable time after the sale, regard being had to the situation of the property, and was followed by an actual and...
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