Gambrel v. Hines
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 474,167 Mo.App. 205 |
| Parties | FELIX GAMBREL, Appellant v. THOMAS H. HINES et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Holt Circuit Court.--Hon. Francis H. Trimble, Judge.
REVERSED AND REMANDED.
H. B Williams and W. E. Stubbs for appellant.
Under this state of facts, interpleaders cannot recover in this action. R. S. 1909, Sec. 2887; R. S. 1909, Sec. 2861; Harmon v. Morris, 28 Mo.App. 326; Dyer v Balsley, 40 Mo.App. 559; State ex rel. Cuomo v Hall, 45 Mo.App. 298; The Huggins Cracker & Candy Co. v. Ellis & Co., 45 Mo.App. 585. A retention of possession by the vendor renders the sale void, and notice of such sale to a creditor is immaterial. Collins v Wilhoit, 108 Mo. 451. There must be an actual delivery and change of possession. Halderman v. Stillington, 63 Mo.App. 212; State ex rel. v. Stone, 111 Mo.App. 364; Dyer v. Beasey, 40 Mo.App. 559. When personal property is sold, there must be a change of possession, and the change of possession must be open, notorious and unequivocal, in order that the sale may be valid against creditors. Bishop v. O'Connell, 56 Mo. 158; Wright v. McCormick, 67 Mo. 426; Stebbacher, etc., v. Saunders, 74 Mo.App. 475; Revercomb to use v. Duker, 74 Mo.App. 570; State ex rel. v. Goetz, 131 Mo. 675; State ex rel. v. Hall, 45 Mo.App. 298; State ex rel. v. Stone, 111 Mo.App. 364; Reynolds v. Beck, 108 Mo.App. 188. Sale of personalty, not followed by delivery to purchasers, with change of possession, is invalid as against creditors of sellers. The State to use v. Frank, 22 Mo.App. 46; Distilling Co. v. Furniture Co., 51 Mo.App. 1; Drug Co. v. White, 66 Mo. 24; Kirby v. Johnson, 22 Mo. 354. Interpleader knowingly consented to the property in question being advertised for sale, as property belonging to the execution defendant, Thomas H. Hines. The execution creditor was induced thereby to cause said property to be levied upon, under execution, as the property of said execution defendant, and thereby incurring much cost and expense, and such being true, the interpleader is now estopped from setting up title to the property in question. State ex rel. v. Branch, 151 Mo. 622; Bright v. Miller, 95 Mo.App. 270; Spence v. Renfro, 179 Mo. 417; Layson v. Cooper, 174 Mo. 211; Riley v. Vaughn, 116 Mo. 169; McCain v. Alshire, 72 Mo.App. 390.
John W. Stokes and J. B. Dearmont for respondents.
A garnishee, to relieve himself of liability, must ask that all claimants be brought in and made parties, regardless of the amount claimed. Schawacker v. Dempsey, 83 Mo.App. 342. A debtor, whether solvent or insolvent, may prefer one or more of his creditors, and may by any suitable means appropriate his property to the payment of the just debts of one or more of his creditors to the exclusion of all others. Wood v. Porter, 179 Mo. 65; Black v. Epstein, 221 Mo. 309. Relationship and insolvency are not sufficient in themselves to establish fraud. The rule is that fraud must be proved and cannot be presumed. Black v. Epstein, 221 Mo. 309; Robinson v. Dryden, 118 Mo. 539. In garnishment proceedings the execution creditor acquires no greater right against the garnishee than was held by the principal debtor. If the execution debtor could not maintain an action against the interpleader herein, then the execution creditor of said execution debtor cannot. Brewing Co. v. Railroad, 145 Mo.App. 32; Johnson v. Pub. Co., 122 Mo. 104; Bank v. Hoppe, 132 Mo.App. 458.
--Garnishment and interpleas. On the 15th day of January, 1907, Gambrel obtained a judgment in the circuit court of Holt county against Thomas Hines for $ 56.08 and costs, the costs amounting to $ 125.95, making the total judgment $ 182.03. One or more executions were issued upon the judgment and returned nulla bona. The execution which has reference to the subject of this controversy was issued on the 16th day of January, 1909.
A short time prior to the issuing of this execution, Hines, the execution debtor, advertised certain personal property to be sold at the farm, upon which he was residing, at public sale, on the 19th day of January, 1909, in which advertisement he stated that he intended to remove from the State. On the day of sale, the sheriff of the county went to the farm mentioned to levy upon the personal property so advertised for sale as the property of Hines. It seems that there was to be other personal property than that of Hines also to be sold at that time. Upon arriving at the farm, the sheriff made his business known to Hines, whereupon Hines, to prevent injurious effect upon the sale, agreed with the sheriff that if the sheriff would not seize the property under the execution, that he (Hines) would leave in the hands of Fred Burnett, who was the clerk of the sale, enough of the proceeds derived from the sale of said property to satisfy the execution in the hands of the sheriff, and that the sheriff could seize said proceeds in lieu of, and as for the property itself. Whereupon, Hines, the sheriff and Burnett inspected the property, and Hines pointed out to Burnett the property from the sale of which the proceeds were derived, which said proceeds were seized by the sheriff under the execution in his hands, and which are the subject of this litigation.
In the morning of the day of sale, Hines executed a bill of sale of the property mentioned to Joseph G. Wilson, his father-in-law, and J. P. Hines, his brother, the consideration being an existing indebtedness. Plaintiff had no notice of this bill of sale previous to the seizure of the property.
The funds having been garnisheed in his hands, Burnett asked leave to deposit them with the court, and for an order for claimants to interplead for the funds. Wilson and J. P. Hines filed their interpleas, and issue being made, the cause was heard by the court sitting as a jury.
The bill of sale was not recorded, nor was the property mentioned in the bill of sale pointed out to interpleaders at the time of the execution of said instrument, and no physical possession was taken by them. Both interpleaders were present, and Wilson was the auctioneer who cried the sale. They were not parties to the agreement made between the sheriff and the debtor, Hines, that the property should be sold and the proceeds held by Burnett, subject to seizure by the sheriff, as stated, and also to be held subject...
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