Heinrichs v. Woods

• Decision Date: 20 May 1879
• Citation: 7 Mo.App. 236
• Parties: CHARLES A. HEINRICHS, Appellant, v. WILLIAM S. WOODS, Respondent.
• Court: Missouri Court of Appeals

7 Mo.App. 236

CHARLES A. HEINRICHS, Appellant,

v.WILLIAM S. WOODS, Respondent.

St. Louis Court of Appeals, Missouri.

May 20, 1879.

This assignee under a voluntary assignment for the benefit of creditors, does not represent the creditors, and cannot on their behalf dispute a conveyance of his assignor, good inter partes, as being in fraud of creditors.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

D. W. SADLER, for appellant cited: Chapman v. Callahan, 65 Mo. 299; Crawford v. Lyle, 3 Mo. App. 585; Leach v. Kelly, 7 Barb. 466; Brownell v. Curtis, 10 Paige, 210; The State to use v. Rowse, 49 Mo. 593; Perry v. Calvert, 22 Mo. 361; Reid v. Mullens, 48 Mo. 344.

L. B. VALLIANT, for respondent, cited: Gates v. Labeaume, 19 Mo. 26; Wittmore v. Hastings, 51 Mo. 171; Valentine v. Decker, 43 Mo. 583; Bevins v. Bolton, 31 Mo. 443; Pope v. Pope, 40 Miss. 516; Mitchell v. Black, 6 Gray, 105; Sawyer v. Turpin, 1 Otto, 114.

BAKEWELL, J., delivered the opinion of the court.

On April 20, 1874, Poppin & Co., being embarrassed, owed the plaintiff $2,543, represented by a note then overdue. The plaintiff extended the note for six months, in consideration that Poppin & Co. would secure him by a mortgage upon a portion of their stock in trade. This stock consisted of toys contained in a four-story warehouse. It was agreed that the mortgage should not be recorded, as Poppin & Co. hoped, if no alarm was created amongst their general creditors, they might be able to pay their way and continue their business. It was agreed that an actual delivery of the goods should be made. The mortgage covered the goods stored in the third and fourth stories; and on the execution of the mortgage, Poppin took the plaintiff's agent up to the third floor, showed him the goods, and said, “I give you possession of all these goods.” The same ceremony was performed on the fourth floor. The goods were inventoried, and an inventory furnished the plaintiff's agent, and verified by his personal examination. Poppin & Co. were allowed to sell from the goods thus inventoried, provided they should keep a separate account of these sales, not sell below a certain price, and turn over the proceeds to the plaintiff in extinguishment of the debt. Three months afterwards, Poppin & Co. made a voluntary assignment under the statute, to Woods, for the benefit of all their creditors; under which Woods took possession of the goods in question, and of all the other goods in the store, according to the terms of the assignment. This action is for the possession of the specific property described in the mortgage. There was a verdict and judgment for the defendant, and the plaintiff appeals.

The instructions given and refused are very numerous and lengthy. It is unnecessary to refer to them further than to say, that, from the action of the court in giving and refusing instructions and in the admission and exclusion of evidence, it appears that the case was tried, against the plaintiff's objections, on the erroneous theory that an assignee under a voluntary assignment for the benefit of creditors, under our statute, stands as the representative of the creditors, in such a sense that he can attack the conveyances of his assignor on the ground of fraud; and that it lay, therefore, in the mouth of Woods, in the present case, to say, that no sufficient delivery of these goods having been made, the unrecorded mortgage was in fraud of creditors and void as to them. This mortgage was confessedly good inter partes, and to secure a bona fide debt. The debtor could not attack...