Claflin v. Rosenberg

• Decision Date: 31 March 1868
• Citation: 42 Mo. 439
• Parties: AARON CLAFLIN and CHARLES F. CLAFLIN, Appellants, v. SAMUEL ROSENBERG; SIMON STRAUSS, Interpleader.
• Court: Missouri Supreme Court

42 Mo. 439

AARON CLAFLIN and CHARLES F. CLAFLIN, Appellants,

v.SAMUEL ROSENBERG; SIMON STRAUSS, Interpleader.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

This suit was commenced by attachment levied on a stock of boots and shoes in a store occupied by Samuel Rosenberg, defendant, near the corner of Seventh street and Franklin avenue, in the city of St. Louis, on the 22d of January, 1867. Simon Strauss, interpleader, claimed the goods by virtue of a bill of sale made on the 18th of December, 1866. Upon the trial of the interplea the testimony for Strauss showed that he was a milliner, doing business on Fourth street, in St. Louis; that he was brother-in-law of defendant; that he had loaned him considerable sums of money, and paid certain bills on his account; that, in consideration of these debts, defendant gave him a bill of sale of his stock of goods, had the deed recorded, and turned over the store to interpleader, who, on the evening of the transfer, made an arrangement with defendant by which he employed him as his clerk, at a salary of $70 per month, to sell the stock, receive the proceeds, and turn over to interpleader any balance which might remain after paying his own wages and expenses of the store, including the rent, which he was to pay to the landlord on behalf of interpleader. The testimony showed that, in pursuance of this arrangement, defendant continued to take charge and control of the store as before the date of the sale, except on one occasion, for two days, when, being sick, his brother, who was clerk of interpleader, supplied his place; and on other occasions, for an hour or so, when he was called away by business, and notified interpleader, whose clerk took his place in the meantime. Interpleader was at the store nearly every day, for an hour or so, before and after the sale, but more frequently afterward. He made his visits after the sale to look after the business; was there generally in the evening; never himself sold any goods, or interfered with defendant while selling them. This summary embraces substantially all the proof.

At the close of the testimony counsel for plaintiff asked the following among other instructions, which the court refused to give:

1. The jury are instructed that, upon the evidence, Simon Strauss, the interpleader, cannot recover.

2. To entitle the interpleader, Simon Strauss, to recover in this case, he must satisfy the jury by the evidence that the goods in question were sold and delivered to him; that he took possession of the same after the purchase; that he had exclusive possession as against said defendant, Rosenberg, and that the change of possession must have been an actual and visible change--such a change as to indicate to persons who had previously done business at the store of Rosenberg, aforesaid, that he no longer had possession of or controlled the goods attached.

3. Unless the jury are satisfied from the evidence that Simon Strauss had actual possession of the goods in question; that the change of possession was visible, continued, and exclusive, as against defendant, Rosenberg--such a change of possession as to indicate to purchasers at large that said defendant was no longer in control of said goods--they are instructed by the court that, as against creditors, the said sale is fraudulent and void, even although they believe from the evidence that said sale from defendant to said Strauss was in good faith and for a valuable consideration.

T. A. & H. M. Post, and Samuel Knox, for appellants.

I. The first instruction refused plaintiff by the court was based upon the tenth section of the statute concerning fraudulent conveyances (Gen. Stat. 1865, p. 440), and amounted to a declaration of law, that interpleader, by his testimony, failed to show an actual and continued change of possession of the goods in dispute after sale. Under the statute, in its present amended shape, the old question of intent is eliminated. There being no case showing change of possession, the transaction is fraud in law, however honest in intent.

In the case at bar the facts were few and plain, all developed by one party on his own behalf, and undisputed. The question, and the only question, was a bald, simple issue of law. Where the testimony as to given facts is diverse and conflicting, the case goes to the jury. But where the facts are clear and uncontradicted, the issue is for the court, however varied and complex such facts may be in their legal bearing. One undisputed fact may show possession in the vendor; another fact, equally unquestioned, may, when taken alone, show possession in the vendee. The testimony, nevertheless, like an agreed case, is one for the court. What the facts are must be settled by the jury. What the facts, when determined, amount to in the eye of the law, must be determined by the court. (Vance v. Boynton, 8 Cal. 554; Mylne v. Henry, 40 Penn. St. 352; 5 Watts, 483; 9 Johns. 342; 5 Serg. & R. 275; 10 id. 84.) The case of Stephenson v. Clark, 20 Verm. 624, which seems to make most strongly against this proposition, is expressly qualified by the same judge (Redfield) in the subsequent decision of Burrows v. Stebbins, 26 Verm. 659, which sustains in full the position of plaintiff.

The facts in evidence clearly failed to show that change of possession required by the statute. The language of the law is in itself plain, and its meaning is settled beyond dispute by a current of legal decisions, from the time of Elizabeth. As between the parties, constructive, fictitious, or symbolical delivery may be sufficient. As to outside creditors, fictions and badges of title are unavailing. There must be “a change of dominion and control over the property.” (Harvey v. St. Louis Butchers, 39 Mo. 217.) “The principle which underlies all the cases is, that there must be an actual separation of the property from the former owner at the time of the sale, or within a reasonable time afterward, according to the nature of the property delivered.” (Barr v. Reitz, 53 Penn. St. 258.) It is contended that when the vendor is acting as clerk of the vendee, the possession of the agent is the possession of the principal under whom he holds. But here the contest arises between vendor and vendee. Under the statute the one must hold as against, and not under, the other. Can it be maintained that while the vendor continues to exercise the charge, custody, and control, nevertheless the possession has passed out of him into the vendee? The only case in which symbolical or constructive change of possession will satisfy the statute is in cases where the property is inaccessible or immovable, or too ponderous or bulky to be transported. Lex non coget ad impossibilia.“An actual change of possession, so far as the thing sold is susceptible of it, is absolutely necessary to the validity of the sale, as to creditors and subsequent purchasers.” (Walter v. Cralle, 8 B. Monroe, 11, 12; Chase v. Ralston, 30 Penn. St. 541; Story on Sales, §§ 304, 392; 2 Kent's Com. § 500; 29 Cal. 472-3; 8 Cal. 80, 554; 20 Cal. 323; 15 Cal. 503.) That the statute contemplates, as far as possible, a transfer of the goods, is evident from its language. There must be a delivery, “regard being had for the situation of the property.” If it be inaccessible or immovable, of course there can be no transfer.

In this view of the law, what proof did the case show of actual change of possession? No case ever was tried where absolute, unchanging continuity of possession could be established. The line of distinction must be drawn somewhere; and certain facts being given beyond dispute, the court is bound to face them squarely, and say whether they constitute a bona fide change of possession, or only unimportant and frivolous exceptional circumstances not affecting the fact.

2. The statute requires that the change of possession shall be continuous. (9 Cal. 271; 15 Cal. 506; 29 Cal. 472.) Interpleader's clerk took defendant's place, at the longest time, for two days. Was such a change in the eye of the statute continuous?

3. The change of possession must be open and notorious, so as to show the world at large that the property had changed hands. (19 Cal. 329; 15 Cal. 506; 10 N. H. 240; 8 Verm. 356.) Was there any evidence tending to show such notice to the world at large of the claims of the new owner?

It was the broad design of the statute, from political considerations, to separate the possession of the property from the vendor after sale absolutely, and regardless of ownership or notice of the ownership. It cuts deeper than fraud in fact and intent. It strikes a blow at the root of fraud by preventing the temptation to commit it. (5 Serg. & R. 281; 8 Cal. 83; 1 Smith's Lead. Cas. 48; 9 Johns. 343.)

The fact that plaintiff was notified of the transfer of the goods will not avail interpleader. An actual and continuous change of possession implying acts of general notoriety and publicity, such as to give knowledge to the community at large of the change of title, and, where the property is capable of it, an entire change of control, must follow the bill of sale in order to render it valid, just as much as a record thereof must accompany a chattel mortgage in order to make it good against purchasers. In the latter case personal notice of an unrecorded mortgage avails nothing. (Bryson v. Hardin, 18 Mo. 15.) Neither does notice to a creditor of change of possession, where there is no actual and continued change of possession, avail anything to render valid the bill of sale of goods. (Walter v. Crouch, 8 B. Monroe, 12; Roberts on Fraud. Cont. 16; Cowper, 711-12; Mason v. Baker, 1 A. K. Marsh. § 210; 40 Penn. St. 352.)

II. The second and third instructions should have been given. They declare that the possession of the vendee as against the vendor must be exclusive. These instructions strike directly at the case at bar, upon the theory of the facts set up by counsel for interpleader. Upon that...