Collins v. Wilhoit
| Decision Date | 01 March 1892 |
| Citation | 18 S.W. 839,108 Mo. 451 |
| Parties | Collins v. Wilhoit et al., Appellants |
| Court | Missouri Supreme Court |
Certified from Kansas City Court of Appeals.
Affirmed.
A. D Burnes and J. W. Coburn for appellants.
(1) The condition in the sale that the hogs were to remain the property of the vendor Collins, until paid for by the vendee McComas, was void, it not being in writing, executed acknowledged or recorded as provided in cases of mortgages of personal property. R. S. 1879, sec. 2505 (second clause); Coover v. Johnson, 86 Mo. 533. In the above case the debt was prior to the sale. (2) The term "creditors" in the first clause of section 2505 has been construed to mean "prior," as well as "subsequent," creditors. Bilby v. Bartman, 29 Mo.App. 139; Harmon v. Morris, 28 Mo.App. 329; Crane v. Timberlake, 81 Mo. 431; Stewart v. Nelson, 79 Mo. 522, 524; Mills v. Thompson, 72 Mo. 367; Stern v. Henley, 68 Mo. 262; Knoop v. Distilling Co., 26 Mo.App. 315; Burgert v. Burgert, 59 Mo. 80. (3) "Words and phrases, the meaning of which, in a statute, has been ascertained, are, when used in a subsequent statute, to be understood in the same sense." Potter's Dwarris on Statutes [Ed. 1885] p. 274; Bacon's Abridgment, Title Statute, 1; Com. v. Hartwell, 3 Gray, (Mass.) 450; Buchnaboye v. Mottichmed, 32 Eng. L. & Eq. 84; Bogardus v. Church, 4 Sand. Ch. 633; Riggs v. Wilton, 13 Ill. 15; Adams v. Field, 21 Vt. 256. So the word creditors in the second clause of section 2505 should be construed "prior" as well as "subsequent" creditors, as it has been construed in the first clause of said section, before the enactment in 1877 of the second clause. (4) Collins consented to the mortgage by McComas to Waller, or assented to it after it was made, said he looked to Waller for the money due him from McComas, received $ 50 of the money derived from the sale by Waller under the mortgage, which was the only part of the money derived from such sale, and permitted Waller to apply the balance of the money from such sale on his debt from McComas for rent. Such conduct was a waiver of his lien, not only to Waller, but to all the world. Robbins v. Phillips, 68 Mo. 100; Ridgway v. Kennedy, 52 Mo. 24; Little v. Page, 44 Mo. 412; Parmlee v. Cathewood, 36 Mo. 479; Dannefelser v. Weigel, 27 Mo. 45; Patchin v. Biggerstaff, 25 Mo.App. 542; Benjamin on Sales, p. 256; Wilkie v. Day, 6 N.E. 542.
John W. Coats for respondent.
(1) The conditions in the sale of the hogs to McComas by Collins were not void as to Kindred, because he was not a subsequent creditor or subsequent purchaser of McComas, nor was he a prior creditor of Collins. R. S., secs. 2505-2507; Machine Works v. Trisler, 21 Mo.App. 69; Tufts v. Thompson, 22 Mo.App. 564; Knoop v. Distilling Co., 26 Mo.App. 303. And there was no error in the court's refusal to give the first instruction asked by defendants. (2) The court properly refused the second, third and fourth instructions asked by defendants. There was no evidence offered at the trial upon which said instructions could be based. Harrison v. Cachelin, 27 Mo. 26; Webster College v. Tyler, 35 Mo. 268. The evidence clearly shows that Collins had no knowledge of the mortgage given by McComas to Waller until after the levy, and there is no evidence that he consented to the same, and, even if he did, it does not lie in the mouth of Kindred to complain. It would have placed him in no worse position than he already occupied. He was only a prior creditor of McComas, and creditors are not innocent purchasers. Mill Co. v. Turner, Frazier & Co., 23 Mo.App. 103. Neither Kindred nor Waller was a creditor of Collins, or subsequent purchaser in good faith. (3) Upon a state of facts, as in this case, the appellate court will not reverse when the finding is clearly for the right party, by a court sitting as a jury, even though declarations of law, which might have been properly given, were refused. Adams v. Harper, 20 Mo.App. 684; Tufts v. Thompson, 22 Mo.App. 564. Nor will the finding of the trial court be disturbed upon the mere suggestion that the same is against the evidence or weight of evidence. Meyer v. McCabe, 73 Mo. 240. (4) The point raised in the second paragraph of appellant's brief, and the authorities therein cited, are wholly irrelevant to the issues involved in the case at bar. The first clause of section 2505, Revised Statutes, is not involved in the facts or issues of this case. Neither Kindred nor Waller is a creditor of, or purchaser from, Collins. The first clause of this section was intended only as a protection to prior creditors and subsequent purchasers in good faith of the vendor, where there has been no change of possession after a prior sale. This case rests upon the second clause of section 2505, which was intended to protect subsequent creditors and subsequent purchasers in good faith of the vendee; and Waller, the only subsequent creditor or purchaser of McComas, is not a party or complainant in this case. Machine Works v. Trisler, 21 Mo.App. 69; Tufts v. Thompson, 22 Mo.App. 564; Knoop v. Distilling Co., 26 Mo.App. 303.
OPINION
IN BANC.
The plaintiff commenced this action of replevin before a justice of the peace to recover four hogs. He prevailed in the justice's court and again in the circuit court. The Kansas City court of appeals, to which the cause was appealed, reversed the judgment of the circuit court and remanded the cause, and then certified the same to this court for the reasons hereafter stated.
The facts are these: Joseph Kindred recovered a judgment against McComas in 1885 or 1886. In October, 1887, McComas purchased from Collins, the plaintiff in this case, twenty head of hogs, including the four now in question. He did not pay for them, and it was verbally agreed between him and Collins that McComas should take possession of the hogs, but that they should remain the property of Collins until paid for. An execution was issued on the judgment in favor of Kindred against McComas and placed in the hands of constable Wilhoit, who levied the same on the four hogs in question on the fourteenth of December, 1887. The date of the execution is not given. Collins then commenced this suit, McComas not having yet paid for the hogs. There is some other evidence which will be noticed hereafter.
The case turns upon the question whether the court erred in refusing the following instruction asked by the defendant: "That if Collins sold the hogs in controversy to McComas and delivered possession of them to McComas, and at said sale it was agreed between them that the hogs were to be the property of the vendor until paid for, then said sale is void as against the creditor of the vendee, unless said condition as to ownership was reduced to writing, acknowledged and recorded as provided by law in cases of mortgages of personal property."
The defendant bases his right to have this instruction given on the second clause of section 2505, Revised Statutes, 1879. The first clause provides: "Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith." And the second clause is in these words: "And no sale of goods and chattels, where possession is delivered to the vendee shall be subject to any condition whatever as against creditors of the vendee, or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed and acknowledged by the vendee, and recorded as now provided in cases of mortgages of personal property."
From the foregoing statement it will be seen that Kindred recovered his judgment before Collins sold the hogs to McComas, so that he was a prior creditor of McComas. And the first question is whether the term "creditors," as used in the second clause, includes prior creditors. The Kansas City court of appeals held in this case that it included prior as well as subsequent creditors, while the St. Louis court of appeals holds that it means subsequent creditors only. Defiance Machine Works v. Trisler, 21 Mo.App. 69; Knoop v. Distilling Co., 26 Mo.App. 303; State v. Green Tree Co., 32 Mo.App. 276. It is because of this conflict in the rulings of those courts that the case in hand was certified to this court.
The first clause of section 2505 is the old tenth section of the statute concerning fraudulent conveyances as amended by the General Statutes of 1865. In 1877 the legislature added the second clause by way of an amendment and as thus amended the whole section was carried into the Revised Statutes of 1879. Prior to 1877, these sales, upon condition that the title should remain in the vendor until payment of the purchase price, were held valid as against creditors, though the condition was not made matter of record. Mfg. Co. v. Culp, 85 Mo. 548, and cases cited. Such sales became of frequent occurrence, and were productive of much mischief, and, hence, the new enactment. The fact that this new enactment was made by an addition to the old section as amended in 1865, and the manifest similarity of the language used in the clauses, show quite clearly that the legislature used the term "creditors" in the second clause in the same sense in which it had been used in the first. Now, we have held...
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