Bryson v. Penix
Decision Date | 31 March 1853 |
Citation | 18 Mo. 13 |
Court | Missouri Supreme Court |
Parties | BRYSON & HARDIN, Appellants, v. PENIX et al., Respondents. |
1. Under the eighth section of the act concerning fraudulent conveyances, (R. C. 1845,) the purchaser of personal property from a mortgagor in possession, will hold against a prior unrecorded mortgage, even though he had notice of it.
2. It seems, however, that such would not be the case if the mortgage was recorded within a reasonable time after its execution.
Appeal from Pike Circuit Court.
This was an action commenced by Bryson and Hardin against Penix and the administrator of James M. Parks, to recover the amount of four notes executed by Parks, in his life-time, and secured by a mortgage on certain beef cattle. The administrators of Henry Early were subsequently made parties defendants. The cause was submitted to the court upon the following agreed statement of facts:
Upon these facts, the court gave judgment for the defendants, and the plaintiffs appealed.
Broadhead, for appellants.
All the provisions of the act concerning fraudulent conveyances must be construed together, and, if possible, made to harmonize. The construction of the eighth section contended for by the respondents completely nullifies the provisions of the second and third sections; for, by that construction, the mere registry of a mortgage on personal property makes it valid against all the world, whether fraudulent or not, and whether the mortgagee was a party or privy to the fraud or not. The eighth section could only have been intended to place mortgages on personal property, on the same footing with deeds for land, and to make registry constructive notice. (Shepherd v. Trigg, 7 Mo. 151; Ross v. Crutzinger, Id. 245, 8 Id. 332; 11 Id. 369.) The act was intended to prevent frauds and not to be used as an instrument of fraud. Penix is a subsequent purchaser, with full notice of a prior bona fide conveyance.
J. D. Coalter, for respondents.
By the eighth section of the act, where the mortgagor of personal property remains in possession, the mortgage is not valid, except between the parties to it,...
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