Hall v. Webb

• Decision Date: 31 March 1859
• Citation: 28 Mo. 408
• Parties: HALL, Appellant, v. WEBB et al., Respondents.
• Court: Missouri Supreme Court

28 Mo. 408

HALL, Appellant,

v.WEBB et al., Respondents.

Supreme Court of Missouri.

March Term, 1859.

1. Quere, how far is a deed of trust conveying a stock of goods in trade and also all goods and stock that may belong to the grantor during the continuance of the trust valid and operative?

Appeal from St. Louis Court of Common Pleas.

This was an action for the possession of certain goods, wares and merchandise in possession of defendants, A. F. W. Webb and John H. Young. The plaintiff Hall sues as trustee under a deed of trust dated January 1, 1852, executed by Restcome P. Perry. This deed of trust was made to secure the payment of two promissory notes for $10,000 each, both dated December 1, 1851, and payable to the order of Thomas & Franklin--one on the first of January, 1855, and the other on the first of January, 1856. By this deed, which was recorded January 28, 1852, the said Perry did “bargain, sell, transfer and deliver unto the said party of the second part, all the stock in trade, goods, wares and merchandise of every kind and description in the hardware store, No. 86 North Main street, in the city of St. Louis, now occupied by said party of the first part, as well as all the goods and stock now in course of transportation belonging to said party of the first part, as also all the stock in trade of every kind which during the existence of this trust shall belong to said party of the first part either in said store or in any other store or place; hereby intending to convey to said party of the second part all the goods of every kind and stock which now belong or may during the continuance of this trust belong to said party of the first part, whether the same be in said hardware store or in any other store, or in course of transportation; to have and to hold,” &c. About the time of the execution of this deed of trust John H. Young became a partner of said Perry. Young continued to be a partner of said Perry until August, 1854, when he sold his interest in the partnership to Perry. Perry at this dissolution agreed to pay the partnership debts and to hold Young harmless. He executed a deed of trust upon the stock of goods to secure Young against his liability for the partnership debts. This deed was dated December 8, 1854, and was made to defendant Webb as trustee. Webb took possession under this deed the latter part of December, 1854. There was evidence tending to show that when the sheriff took possession of the stock of goods in the present suit, there was remaining on hand of the goods in the store on the first of January, 1852, but few packages, worth about eight or ten dollars.

Hall, the plaintiff in the present suit, giving the bond required by statute, took possession of the goods sued for. He sent them to auctioneers and they were sold for $8,445.12.

The court gave the following instructions at the instance of the defendants: “1. If the jury find from the evidence that, at the institution of this suit, the defendant Young was liable for debts contracted by R. B. Perry & Co. to a greater amount than the value of the property in the possession of said defendants; that said property was delivered by said Perry to said defendants or either of them for the purpose of securing and paying said debts; and that the property in possession of said defendants at the institution of this suit was purchased by said Perry subsequent to the execution and delivery of the deed of trust under which the plaintiff claims, then the plaintiff can not recover. 2. If the jury find from the evidence that the property for the recovery of which this suit is instituted was purchased by the firm of R. P. Perry & Co. (composed of R. P. Perry and John H. Young) after the execution of the deed of trust to the plaintiff; that the said firm of R. P. Perry & Co. was dissolved before the institution of this suit; that at the time of the dissolution it was agreed that said Perry should pay all the debts for which said firm was liable and should execute a deed of trust on said property to secure the said John H. Young from all liability on account of said debts; that he did execute such deed of trust; that at the institution of this suit the said firm was liable for debts so contracted to a larger amount than the value of the goods in possession of the defendants, then the plaintiff can not recover. 3. Even if the jury shall find from the evidence that there was a package or packages of the value of ten or twelve dollars in the possession of defendants at the institution of this suit, which was in the store of R. P. Perry & Co. at the execution of the deed of trust under which plaintiff claims, the plaintiff can not recover unless he required the defendants to point out said property before the institution of the suit, and defendants refused to do so, and then can recover the above property only, unless they find for the plaintiff under the other instructions given in this case. 4. The jury will find the value of the property at the time it was delivered by the sheriff to the plaintiff, and also assess the damages suffered by the defendants by reason of the property being taken out of their possession, not exceeding the rate of six per cent. per annum on the value of the property from the commencement of this suit until the present time.”

The plaintiff asked the court to give the following instructions to the jury: “1. Usury, even if proved, is no defense to this action. 2. If the jury find from the evidence that R. P. Perry on the 7th day of August, 1854, bought the interest of defendant Young in the firm of R. P. Perry & Co. and continued the same kind of business at the same place and with the stock so bought by him, then the deed of trust given in evidence by the plaintiff attached upon the stock of said Perry, and continued to bind the same until the commencement of this suit. 3. If the jury find from the evidence that the deed of trust given in evidence by plaintiff was executed and delivered before or at the time the partnership was formed between himself and defendant Young; that before said partnership was formed said Perry had transacted a hardware business at the same store and his stock constituted the same stock of the said concern at its commencement, and that said Perry on the 7th day of August, 1854, purchased of defendant Young his interest in the concern, and continued to carry on the same kind of business at the same stand, and also continued the stock in said subsequent business, then the said deed of trust continued to bind the stock of said Perry on the 23d day of December, 1854, and until the commencement of this suit. 4. If the jury find from the evidence that the deed of trust and notes given in evidence by the plaintiff were executed by Perry and delivered by him at or about the times of the dates thereof, and that said Perry, either by himself or as a partner of the firm of R. P. Perry & Co., composed of said Perry and said defendant Young, continued to do business in the same store named...