Dobyns v. Meyer

• Decision Date: 21 May 1888
• Citation: 8 S.W. 251,95 Mo. 132
• Parties: DOBYNS v. MEYER et al.
• Court: Missouri Supreme Court

8 S.W. 251

95 Mo. 132

DOBYNS v. MEYER et al.

Supreme Court of Missouri.

May 21, 1888.

CHATTEL MORTGAGES — VALIDITY — AGREEMENT THAT MORTGAGOR MAY SELL.

Where a deed of trust was given on certain planing-mill stock, by a manufacturing company, to secure a debt to a bank, under a parol agreement between the bank and the manufacturing company that the latter might sell the stock in trade, in the usual course of business, for its own benefit, and afterwards the company made an assignment for the benefit of all its creditors, and, with the consent of the assignee, the trustee took possession of the property under the trust deed, held, that the deed of trust is valid as against creditors attaching the property after the trustee has taken such possession of it.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge. Transferred from St. Louis court of appeals.

Action by Joseph S. Dobyns, trustee in a deed of trust from the Falter Manufacturing Company to secure a debt of the Fifth National Bank, against George F. Meyer and others, attaching creditors of such company, for damages for carrying away, under attachments, certain of the property conveyed in the trust deed. Judgment for plaintiff, and defendants appeal.

Kehr & Tittman, for appellants. Jos. S. Dobyns, for respondent.

BLACK, J.

This is a suit for damages for carrying away doors and other manufactured building material. The judgment, which was for the plaintiff, was affirmed by the St. Louis court of appeals, but the case was then certified to this court because one of the judges deemed the opinion contrary to a previous decision of this court. The facts are these: On the 20th September, 1883, the Falter Manufacturing Company made to plaintiff, as trustee, a deed of trust upon certain real and personal property, including a stock of planing-mill material, to secure a large indebtedness to the Fifth National Bank. On the 9th of the following December, the manufacturing company made an assignment of all its property for the benefit of all its creditors. The property in question was then turned over to the assignee. The assignee then gave the trustee in the deed of trust possession of all the property therein described, real and personal, including the property in question. After this, the defendants, creditors of the manufacturing company, levied a writ of attachment upon the property now in dispute, sold the same, and applied the proceeds to the payment of their debt. The deed of trust was duly recorded before the assignment. There was evidence tending to show that, at the date of the deed of trust, there was an understanding between the bank and the manufacturing company that the latter might sell the stock in trade in the usual course of business for its own benefit. But, notwithstanding this agreement, the court instructed that if the plaintiff, prior to the levy of the attachment, took possession of the property under the deed of trust and...