Fink v. Algermissen

• Decision Date: 22 March 1887
• Citation: 25 Mo.App. 186
• Parties: FINK & NASSE, Appellants, v. FRANK ALGERMISSEN; H. B. ALGERMISSEN ET AL., INTERPLEADERS, Respondents.
• Court: Missouri Court of Appeals

25 Mo.App. 186

FINK & NASSE, Appellants, v. FRANK ALGERMISSEN; H. B. ALGERMISSEN ET AL., INTERPLEADERS, Respondents.

Court of Appeals of Missouri, St. Louis.

March 22, 1887

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS Judge.

Reversed and remanded.

THEODORE BRUERE and C. W. WILSON, for the appellants: If the interpleaders accepted the mortgage or conveyance, with the intent of thereby aiding and assisting Frank Algermissen in his design to hinder or delay his creditors, then the conveyance is fraudulent and void as to other creditors, even though that intention, on their part, may have been coupled with a purpose to secure, in whole, or in part, a bona fide debt. 1 Rev. Stat. 1879, sect. 2494; Bergert v. Borchert, 59 Mo. 80, 83; The State to use v. Nauert, 2 Mo.App. 295, 296; Holmes v. Braidwood, 82 Mo. 610, 616; Shelley v Boothe, 73 Mo. 77; Stone v. Spencer, 77 Mo 359; Crow v. Beardsley, 68 Mo. 439, 440; Cordes v. Straszer, 8 Mo.App. 61, 62.

O. J. MUDD & BROTHER, for the respondents: The debt secured was admitted to be bona fide. Holmes v. Braidwood, 82 Mo. 610; Shelley v. Boothe, 73 Mo. 77; Lane v. Ewing, 31 Mo. 75. The evidence does not show, as stated by appellants in their brief, that F. Algermissen ever was in possession after making the mortgage in his own right, but only as the agent or bailee of the interpleaders, which possession, not being for his own use, is perfectly lawful in a case of this kind. Pierce on Mort. of Mdse. sect. 58; Hewson v. Tootle, 72 Mo. 632; Metzner v. Graham, 57 Mo. 404; The State to use v. Jacob, 2 Mo.App. 183; The State to use v. D'Oench, 31 Mo. 453; Kelley's Mo. Treatise, sect. 668. Instruction six given for the interpleaders, in view of the admitted facts of this case, contains no improper declarations of law. It is correct. The admissions and statements of a grantor may not operate against the honest acts of a grantee. They may be evidence of fraud in the grantor; but the fraudulent purpose of the grantor is harmless as to the grantee, unless the latter participate therein. Holmes v. Braidwood, 82 Mo. 615; Singer v. Goldenberg, 17 Mo.App. 549; Thompson v. Foerstel, 10 Mo.App. 290; Metzner v. Graham, 57 Mo. 404.

OPINION

THOMPSON J.

This was a contest between the plaintiffs in an attachment suit and certain interpleaders, who claimed the goods attached, by virtue of a chattel mortgage. The goods consisted of the stock in trade of the attachment defendant, who was a retail merchant. The mortgagees were his relatives. The mortgage was given to secure, among other things, an alleged indebtedness the amount of which had not been determined, and certain contingent liabilities of endorsers or sureties for the defendant. The mortgage was duly recorded. After it was executed and recorded, the defendant in the attachment suit continued to carry on the business in the store, and to deal with the stock of goods ostensibly just as he had dealt with them before. He used the moneys, which he received from the sales of merchandise, in payment of his private debts previously incurred, which fact the evidence tends to show was known to the mortgagees, or to some of them. In fact, he never paid over any money to the mortgagees, until the day before the trial of this action, when he handed to one of them the sum of thirty-five dollars, in order, as the latter admitted in his testimony, that he might be able to swear that money had been turned over to him from the proceeds of the merchandise conveyed in the mortgage. About a week after the execution of the mortgage, under advice of counsel, the mortgagees gave to the attachment debtor a paper constituting him their agent to carry on the business. He put the paper in his pocket, concealed the fact of his agency from other creditors, and from the public generally, and continued to carry on the business as before, ostensibly as his own business. In short, the evidence would have fairly authorized the jury to find that the mortgage was intended, in part at least, to shield the debtor from his other creditors, and to enable him to hold them at arm's length, or to obtain compromises from them, which the evidence shows he endeavored to do. If the mortgage was made in part--not only to secure the mortgagees,...