Bullene v. Barrett

• Decision Date: 31 October 1885
• Citation: Bullene v. Barrett, 87 Mo. 185 (Mo. 1885)
• Parties: BULLENE et al. v. BARRETT et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 185

BULLENE et al.

v.BARRETT et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Certified from Kansas City Court of Appeals.

REVERSED.

W. C. Stewart for appellant.

(1) Instruction number two given for respondents did not properly declare the law. (2) Instruction number three also given for respondents is likewise erroneous. If there was no fraud at the time the mortgage was originally made the property immediately vested in the mortgagee and could not be divested by any subsequent fraudulent agreement between the parties. Shep. Touchstone, 66, 240; Klap v. Shirk, 13 Pa. St. 589; Wooster v. Stanfield, 11 Ia. 128. As to whether fraud in fact exists is a question for the jury. Zeigler v. Maddox, 26 Mo. 575; Webber v. Armstrong, 70 Mo. 217; Hewson v. Tootle, 72 Mo. 632; Seward v. Jackson, 8 Cow. 406. Said instruction number three is further erroneous in that it ignores the intent involved, and directs the jury that the facts assumed in the instruction without regard to such intent constitute fraud in fact. Hughes v. Cary, 20 Ia. 399; Gay v. Bidwell, 7 Mich. 519; Biggs v. Parkham, 2 Mich. 218; Barnora v. Eaton, 2 Cush. 294; Cobb v. Farr, 16 Gray, 597; Abbot v. Gooding, 2 Me. 408. The instruction is further erroneous, in that it singles out certain facts and directs a verdict regardless of the other facts in dispute. Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Iron Mountain Bk. v. Murdock, 62 Mo. 73.

Peak & Yeager for respondents.

(1) The second instruction given for respondents declares the law as it exists in this state. Shelby v. Boothe, 73 Mo. 74; Goff v. Stein, 12 Mo. App. 122; Henderson v. Henderson, 55 Mo. 534. (2) Respondents' third instruction also rightly declared the law. The same facts which would render a conveyance void as a matter of law if expressed on the face of the conveyance would likewise make it void if found by the jury to exist outside of it and as part of the transaction. Johnson v. McAllister, 30 Mo. 327; Weber v. Armstrong, 70 Mo. 219; Hewson v. Tootle, 72 Mo. 632.

NORTON, J.

The judges of the Kansas City court of appeals, being divided in opinion in reference to the propriety of instruction number three, given for plaintiffs, have certified the case to this court. The suit is by attachment, against defendant Barrett; the writ was levied upon a certain stock of goods and fixtures as the property of Barrett; defendant, Donnell, appeared to the action, and by permission of the court filed an interplea, claiming the right to the property under and by virtue of a mortgage executed by Barrett, acknowledged and recorded before the levy of attachment, conveying to said Donnell a stock of goods, merchandise and fixtures to secure the payment of a debt therein specified. On the trial of the issue raised upon the interplea, among other evidence introduced, evidence was offered tending to show that it was agreed and understood between Barrett, the mortgageor, and Donnell, the mortgagee, that Barrett was to remain in possession of the stock of goods mortgaged and sell them in the usual course of trade for his own use and benefit. It is conceded that the mortgage in question was fair and valid on its face.

To meet the state of facts which the evidence tended to establish, the court gave instruction numbered three which is as follows:

“3. The court instructs the jury that if they believe from the evidence that there was an understanding or agreement between Donnell and Barrett, at the time the mortgage in question was executed, that the said Barrett was to remain in possession of the stock of goods mortgaged and continue to sell the same in the ordinary course of business and dispose of the proceeds for his own use and benefit, and if the jury shall believe that the said Barrett did in pursuance of such agreement so remain in possession of said stock, and did continue to sell the same for his own use and benefit with the knowledge and consent of and in pursuance of an agreement theretofore made with the said Donnell, then said mortgage was and is fraudulent in fact, and your verdict must be against the interpleader.”

While it is conceded that if the vitiating facts stated in the instructions had appeared in the mortgage in quesrion, that it would be void as matter of law, without reference to the intention of the parties, it is contended, that where such facts are made to appear by extrinsic evidence, the mortgage, if fair on its face, is not fraudulent unless it is made further to appear that the intent of the parties was in fact to hinder and delay creditors. It has been held by this court in numerous cases that when it appears on the face of the mortgage conveying goods and merchandise that the mortgageor is to retain possession of the goods, and to sell and dispose of them in the usual course of business for his own benefit, that such mortgage is void as to creditors, on the ground and for the reason that such a conveyance is deemed in law to be for the use of the grantor, and, therefore, void by virtue of section 2496, Revised Statutes. Reed v. Pelletier, 28 Mo. 173; State to use, etc., v. Tasker, 31 Mo. 445; State to use, etc., v. D'Oench, 31 Mo. 453. It logically follows from this ruling that, in a case where the mortgage is fair on its face and the same impeaching facts are proven by extrinsic evidence, the same legal consequence flows from them when established. It is the facts which invalidate the deed, and not that they are made to appear by this or that evidence. It is sufficient if they are made manifest; and it can make no difference in principle, as to the legal effect of the facts, whether they appear on...