Elliott v. Keith

• Decision Date: 29 October 1888
• Citation: 32 Mo.App. 119
• Parties: BENJAMIN ELLIOTT, Administrator of SAMUEL W. CREASEY, Deceased, Appellant, v. GEORGE G. KEITH, Defendant, and ANN M. KEITH, Interpleader, Respondent.
• Court: Kansas Court of Appeals

32 Mo.App. 119

BENJAMIN ELLIOTT, Administrator of SAMUEL W. CREASEY, Deceased, Appellant, v. GEORGE G. KEITH, Defendant, and ANN M. KEITH, Interpleader, Respondent.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Lafayette Circuit Court. --HON. RICHARD FIELD, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Wallace & Chiles, for the appellant.

(1) The sale of property claimed to have been made by George G Keith, the debtor in the attachment suit, to the interpleader, who is his wife, through which interpleader claims and on which alone her title rests, not having been accompanied with a change of possession at any time, and nothing to apprise the public that the property had changed hands, was and is void as to Samuel W. Creasey, who was then a creditor, and void as to his administrator, the plaintiff in attachment. The court erred in giving interpleader's instruction number three, and in refusing administrator's instruction number two, by which this question is directly raised. Harmon v. Morris, 28 Mo.App. 326; see also Knoop v. Nelson, 26 Mo.App. 303, and cases there cited. A contrary conclusion was reached, it is true, by this court in Worley ex rel. v. Watson, 22 Mo.App. 546 but it was by inadvertence, and that case is expressly overruled as to that point in the case of Harmon v Morris, supra. (2) The decision in the case of Worley v. Watson not having been known to be overruled when this case was decided, and the appeal, if any, in this case, going to this court, the circuit court below was governed by the ruling in Worley v. Watson; and, therefore, the first instruction asked by interpleader, declaring as a matter of law that she should recover, was given. This was error as the law now stands. See cases above cited. (3) For the same reasons last stated, the second instruction given on behalf of interpleader was erroneous, and for the further reason that said instruction utterly ignores that any possession was necessary, at all. R. S., 1879, sec. 2505. (4) The property in controversy in said alleged sale being of the value of thirty dollars and upward, and no delivery having been made, money paid, nor memorandum in writing made of such alleged sale, the same was void, and the second instruction asked for by appellant should have been given. R. S., 1879, sec. 2514. The sale not being good the title did not pass. (5) All the evidence in the case showing that there was no change of possession under the alleged sale, this case should be reversed and remanded with instructions to the court below to enter up judgment for the appellant.

J. H. McHatton and Graves & Aull, for the respondent.

(1) The court did not err in giving instruction three for interpleader. There was a consideration of one hundred and twenty-five dollars paid in good faith, and possession given of the property to the wife. The court properly refused instruction two, asked by appellant, because the court did not believe from the evidence " that there was no actual and continued change of possession, or that possession remained with G. G. Keith down to the time of seizure by the sheriff." There was no evidence to base this instruction on. Machine Works v. Trisler, 21 Mo.App. 69. (2) The second instruction given for respondent was correct, and appellant can find no error in it. The court declares that " upon the law and evidence, it will find for interpleader." There can certainly be no objection to this. The money was paid and possession given to the wife. Was it necessary for the wife to separate herself from her husband and take the cattle with her? Schooler v. Schooler, 18 Mo.App. 69; Murray v. Fox, 11 Mo. 555. (3) Even if the money were not paid at the time, if afterwards paid and received, it related back to the time of sale so as to cure the objection of statute of frauds. Rickey v. Ten Broeck, 63 Mo. 563. (4) The case was fairly submitted to the court (a jury having been waived) under proper instructions, and the court found for interpleader. We submit that the cause should be affirmed.

ELLISON P. J.

On September 5, 1887, Elliott, as administrator of Creasey, instituted an action in the Lafayette circuit court against George G. Keith, suing out a writ of attachment in aid of his suit. The sheriff of Lafayette county having levied the attachment on certain property, as the property of the said Geo. G. Keith, Ann M. Keith his wife, the respondent, filed her interplea claiming certain parts of said property, on which issue was had, which constitutes this action, and the interpleader having prevailed on the trial of said interplea, the administrator appeals to this court.

The court gave the following instructions for interpleader:

" 1. The court declares the law to be that upon the pleading and the evidence the court will find for interpleader."

" 2. The court declares the law to be that if the interpleader Ann Keith purchased the three cows mentioned in the evidence from her husband G. G. Keith for a valuable consideration, to-wit, the sum of one hundred and twenty-five dollars received by her from her relatives and not from her husband, and that the property in controversy is the natural increase from said cows, then the court will find for the interpleader."

" 3. The court declares the law to be that if the sale of the cows from which the cattle in controversy are the increase was valid as between interpleader and her husband then it was also valid

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