Gordon v. McCurdy

• Decision Date: 31 January 1858
• Citation: 26 Mo. 304
• Parties: GORDON, Respondent, v. MCCURDY, (interpleader,) Appellant.
• Court: Missouri Supreme Court

26 Mo. 304

GORDON, Respondent,

v.MCCURDY, (interpleader,) Appellant.

Supreme Court of Missouri.

January Term, 1858.

1. Interpleas can be resorted to in attachment suits only where the property attached is personal property.

Appeal from Platte Circuit Court.

This was an action against Elijah Cady on a promissory note for $492.60. On the 17th day of January, 1856, an attachment was issued in aid of said suit, and on the 19th day of the said month it was levied on certain real estate in Weston as the property of Cady. In the progress of the cause Solomon P. McCurdy filed an interplea claiming the property attached by virtue of a deed of trust bearing date January 17, 1856, executed by said Cady to said McCurdy and one Hulse to secure the creditors of the said Cady. The deed was executed in St. Louis and was filed for record in Platte county, January 28, 1856. The plaintiff filed a replication to this interplea, putting in issue the material allegations in the plea, and charging that the deed was made in fraud of creditors. The jury upon the issues raised upon the interplea found for the plaintiff.

Adams, for appellant.

I. The alleged fraud in the debt of Meigs & Dwink could not avoid the deed of assignment. As to the other creditors named in the assignment the deed was good. (Hardcastle v. Fisher, 24 Mo. 74.) To vitiate a deed of assignment the fraud must be brought home to the assignee. (Wise v. Wimer, 23 Mo. 237; Gates v. Labeaume, 19 Mo. 238; 24 Mo. 74.) The deed of assignment was executed before the attachment, and, though not recorded until after the attachment was levied, it would be good against the attachment. (14 Mo. 170; 20 Mo. 133.)

Hall and Loan, for respondent, contended, among other things, that the statute permitting parties to interplead in attachment cases was intended to apply to those cases where the property attached was personal property.SCOTT, Judge, delivered the opinion of the court.

An interplea in an attachment suit is a remedy conferred by the statute. Its use therefore must be limited to the cases in which it is authorized by law.

There is nothing in the statute which intimates that an interplea can be made for real estate. So far from it, its language seems to confine the remedy to cases in which personal property is attached. There is not the same motive for allowing it in the one case as in the other. Land is fixed and permanent, and if one has a right to it, that right can not be affected except he has notice and is brought...