Hartzler v. Tootle

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDEARMOND, C.
Citation85 Mo. 23
Decision Date31 October 1884
PartiesHARTZLER, Assignee, v. TOOTLE et al., Appellants.

85 Mo. 23

HARTZLER, Assignee,
v.
TOOTLE et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.


Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Comingo & Slover and Wooldridge & Daniel for appellants.

(1) The instruction given for plaintiff was wrong. Tiemon v. Molliter, 71 Mo. 513; Phelps v. McNeeley, 66 Mo. 554; Tenney v. Johnson, 43 N. H. 144; Ferson v. Monroe, 21 N. H. 462. (2) Plaintiff's instruction should have been refused and defendants' first one given. Shackleford v. Clark, 78 Mo. 492; Hillaker v. Clark, 65 Mo. 604; Caldwell v. Scott, 54 N. H. 418; Weaver v. Weaver, 46 Ib. 191; Benson v. Ela, 35 Ib. 420; Menagh v. Whitwell, 52 N. Y. 146; Burtus v. Tisdall, 4 Barb. 571; Conroy v. Woods, 13 Cal. 626; Williams v. Gage, 49 Miss. 777; Linford v. Linford et al., 28 N. J. Law, 113. (3) By the provisions of the alleged assignment, Cummins reserves to himself an interest in the property

[85 Mo. 24]

he attempted to convey, which the law forbids. When he attempts to except from the assignment “such articles of property, and such real estate as are by law exempt from execution,” he reserves, or attempts to reserve, to his own use, property which, in contemplation of law, he held in trust for the creditors of Cummins & Handley, among whom were the defendants. See authorities, supra; also State ex rel. Billingsley v. Spencer et al., 64 Mo. 355, and citations. Defendants' other instructions, especially the second and fourth, should have been given. At the time of the levy of defendants' attachment, there had not been a valid assignment, nor one that could be thereafter perfected as against their rights acquired thereby. R. S. 1879, sec. 362, p. 55; Juliand v. Rathbone, 39 N. Y. 369.

W. J. Terrell and Railey & Burney for respondent.

(1) The court properly declared the law in the instruction given for plaintiff. (2) The reservation of property exempt from execution is not inconsistent with a deed of assignment for the benefit of creditors. Burrill on Assignments (3 Ed.) p. 263; Garnor v. Frederick, 18 Ind. 507. (3) The requirement of Revised Statutes, section 362, that the assignor make a statement in writing, verified by affidavit, at the time of the execution of the deed of assignment and file the same for record with the deed is not mandatory as regards time. Deaver v. Savage, 3 Mo. 139; Duvall et al. v. Blair et al., 7 Mo. 449; Hardcastle v. Fisher, 24 Mo. 70; Bates v. Ableman, 13 Wis. 644; Steinlin v. Halstead, 52 Wis. 289; Clark v. Mix, 15 Conn. 177; Turner v. Jaycock, 40 N. Y. 470; Woodward v. Marshall, 22 Pick. 468 and 473; Hollister v. Loud et al., 2 Mich. 310; Coots v. Chamberlain, 39 Mich. 565 and 568; Stamp v. Case, 41 Mich. 267; Meeker & Perkins v. Sanders & Shaw, 6 Ia. 60; Juliand v. Rathbone, 39 N. Y. 369, has been overruled and is not

[85 Mo. 25]

the law. Juliand v. Rathbone, 39 Barb. 97; Van Vleet v. Slauson, 45 Barb. 317; Evans v. Chapin, 20 How. Pr. 289; Barbone v. Everson, 16 Abb. Pr. 366; Hardmann v. Bowen, 39 N. Y. 196.


DEARMOND, C.

Jasper N. Cummins and Lewis B. Handley, composing the firm of Cummins & Handley, carried on business as merchants at Green City, in Cass county, for a number of years. The firm became largely indebted, among their creditors being Tootle, Hanna & Company, the defendants herein. Handley became the partner of Cummins in 1880, and sold out to him in November, 1881, between the first and the tenth days of the month, it seems, for about $1,100, Cummins to take assets and assume liabilities. On November 21, Cummins and wife gave a deed of trust on a partnership lot on which a grain house was situate, and on another lot to secure the payment of about nine hundred and thirty-five dollars to Handley, the latter having taken certain notes belonging to the firm for the balance of what he was to get for his interest in the firm property. December 1, Cummins made an assignment to his son-in-law, Isaac H. Liston, for the benefit of his creditors. On December 3, Tootle, Hanna & Company, in a suit in the Cass circuit court against Cummins & Handley, attached the property assigned by Cummins to Liston. S. Z. Hartzler was appointed by the circuit court assignee of Cummins, Liston being unable to give a bond. Thereupon Hartzler qualified as such assignee, and interpleaded for the property assigned to Liston, and afterwards seized in attachment. The case made on the interplea was tried by the court without the intervention of a jury, and judgment given for the interpleader, to reverse which the attaching creditor appealed to this court.

Appellants argue that the pretended sale of Handley to Cummins was fraudulent, and the deed of trust from Cummins a part of the same intentional fraud. The

[85 Mo. 26]

firm, it seems, enlarged the field of their operations, built a grain house and embarked in the grain trade. And although at the wind-up the assets were found to be considerably less than the liabilities, yet the assumption is allowable on the whole record that neither knew much about the firm affairs, and hence that there was not honesty and good faith in these transactions is not an inevitable conclusion. There is nothing in the record establishing the existence of the fraud in fact attributed to Cummins and Handley. This is not the first instance of country store-keepers, expanded into grain dealers, finding great expectations ruinously discounted.

The decision of the case must hinge upon the one declaration given for the interpleader, upon which a number of questions arise. If it was not error to give this declaration it was not error to refuse those asked by defendants. It is this:

“If the court, sitting as a jury, believes from the evidence that Jasper N. Cummins was, on and prior to the first day of December, 1881, indebted to the various parties described in evidence, and insolvent; that in good faith, for the sole purpose of paying off his debts and...

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6 practice notes
  • Parker v. Cleaveland
    • United States
    • United States State Supreme Court of Florida
    • January 28, 1896
    ...N.W. 335; Smith v. Mitchell, 12 Mich. 183; Perry v. Vezina, 63 Iowa, 25, 18 N.W. 657; Garnor v. Frederick, 18 Ind. 507; Hartzler v. Tootle, 85 Mo. 23; Brooks v. Nichols, 17 Mich. 38; Rosenthal v. Scott, 41 Mich. 632, 2 N.W. 909; Rainwater v. Stevens, 15 Mo.App. 544; Bradley v. Bischel, 81 I......
  • State ex rel. Missouri Pacific R.R. Co. v. Seay
    • United States
    • Court of Appeal of Missouri (US)
    • December 21, 1886
    ...will lie, and all questions of power or public use, or endeavor to agree, can then be tried. Railroad v. Evans & Howard Fire Brick Co., 85 Mo. 23, and cases cited. When there is other remedy, prohibition will not lie. Wilson v. Berkstresser, 45 Mo. 383, and other authorities in High on [23 ......
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...Exemptions may be selected after assignment (4 Lawson, Right & Rem., § 96; Burrill, Assignments, § 96; 59 Miss. 80; 15 Mo.App. 544; 85 Mo. 23; 100 Pa.St. 580; 36 P. 195; 12 Mich. 180; 19 So. 344; 24 S.E. 103; 64 N.W. 78), even in cases where the assignment purports to carry all of assignor'......
  • Cribben v. Ellis
    • United States
    • United States State Supreme Court of Wisconsin
    • September 20, 1887
    ...of the learned counsel for the appellant: Hildebrand v. Bowman, 100 Pa. St. 580; Richardson v. Marqueze, 59 Miss. 80;Hartzler v. Tootle, 85 Mo. 23;Perry v. Vezina, 63 Iowa, 25, 18 N. W. Rep. 657;Rainwater v. Stevens, 15 Mo. App. 544;Brooks v. Nichols, 17 Mich. 38;Rosenthal v. Scott, 41 Mich......
  • Request a trial to view additional results
6 cases
  • Parker v. Cleaveland
    • United States
    • United States State Supreme Court of Florida
    • January 28, 1896
    ...N.W. 335; Smith v. Mitchell, 12 Mich. 183; Perry v. Vezina, 63 Iowa, 25, 18 N.W. 657; Garnor v. Frederick, 18 Ind. 507; Hartzler v. Tootle, 85 Mo. 23; Brooks v. Nichols, 17 Mich. 38; Rosenthal v. Scott, 41 Mich. 632, 2 N.W. 909; Rainwater v. Stevens, 15 Mo.App. 544; Bradley v. Bischel, 81 I......
  • State ex rel. Missouri Pacific R.R. Co. v. Seay
    • United States
    • Court of Appeal of Missouri (US)
    • December 21, 1886
    ...will lie, and all questions of power or public use, or endeavor to agree, can then be tried. Railroad v. Evans & Howard Fire Brick Co., 85 Mo. 23, and cases cited. When there is other remedy, prohibition will not lie. Wilson v. Berkstresser, 45 Mo. 383, and other authorities in High on [23 ......
  • Lazarus v. Camden National Bank
    • United States
    • Supreme Court of Arkansas
    • October 16, 1897
    ...Exemptions may be selected after assignment (4 Lawson, Right & Rem., § 96; Burrill, Assignments, § 96; 59 Miss. 80; 15 Mo.App. 544; 85 Mo. 23; 100 Pa.St. 580; 36 P. 195; 12 Mich. 180; 19 So. 344; 24 S.E. 103; 64 N.W. 78), even in cases where the assignment purports to carry all of assignor'......
  • Cribben v. Ellis
    • United States
    • United States State Supreme Court of Wisconsin
    • September 20, 1887
    ...of the learned counsel for the appellant: Hildebrand v. Bowman, 100 Pa. St. 580; Richardson v. Marqueze, 59 Miss. 80;Hartzler v. Tootle, 85 Mo. 23;Perry v. Vezina, 63 Iowa, 25, 18 N. W. Rep. 657;Rainwater v. Stevens, 15 Mo. App. 544;Brooks v. Nichols, 17 Mich. 38;Rosenthal v. Scott, 41 Mich......
  • Request a trial to view additional results

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