Hewson v. Tootle

• Decision Date: 31 October 1880
• Citation: 72 Mo. 632
• Parties: HEWSON v. TOOTLE et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 632

HEWSON

v.TOOTLE et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

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

REVERSED.

The property attached sold for $542.75.

C. W. Sloan and Boggess & Railey for appellants.

1. The language of the mortgage necessarily implies that Vogler had the right to retain possession and continue the sale of goods in the ordinary course of his business as a merchant, and apply the proceeds to his own use until the maturity of the note. What else can it mean? Will a man buy a stock of goods and add it to another he allready has, and buy other goods and add thereto, and keep the whole thereof on hand as a security for a note to mature many months hence? These goods were perishable in their nature; necessarily must depreciate in value. The mortgagee stipulated for the right to take possession of the goods. When? On the maturity and non-payment of the note! Expressio unius, exclusio alterius. The mortgage is void under section 2496, Revised Statutes. Robinson v. Robard, 15 Mo. 459; Brooks v. Wimer, 20 Mo. 503; Walter v. Wimer, 24 Mo. 63; Stanley v. Bunce, 27 Mo. 269; Armstrong v. Tuttle, 34 Mo. 432; Lodge v. Samuels, 50 Mo. 204.

2. It was error to admit parol evidence of the supposed agreement that Vogler should pay over the proceeds of sales to Mrs. Hewson. Pearson v. Carson, 69 Mo. 550; R. S. § 2503. Such an agreement, to be good, must be embodied in the mortgage. Metzner v. Graham, 57 Mo. 404.

3. If the mortgage is not void by reason of what appears on its face, yet when taken in connection with the circumstances, situation, and relations of the parties, and their subsequent course of dealing with the mortgaged property, for nearly a year from the date of the mortgaged, it must be held void as matter of law. Reed v. Pelletier, 28 Mo. 173; State v. Benoist, 37 Mo. 500, 515; Bigelow v. Stringer, 40 Mo. 195, 205; State v. D'Oench, 31 Mo. 453; State v. Voullaire, 31 Mo. 445.

4. The interpleader was not entitled to a money judgment. But for the statute (R. S. § 449) persons claiming attached property could not intervene to assert any rights whatever thereto, but would be left to assert them in some other way, such as replevin, trover, conversion, etc., by a new and independent action to recover possession of the property attached. By this section persons are enabled to interplead, and thereby procure an adjudication of their rights. The proceeding is purely statutory, in derogation of the common law, and to be strictly construed; so that the utmost limit to which the right can be extended is the recovery of the thing attached. It cannot be extended so as to allow a party to claim a specific article of personal property and then, upon issues framed to try that right, recover a money judgment against the attaching creditor. Mills v. Thompson, 61 Mo. 415.

Comingo & Slover and W. J. Terrell for respondent.

1. Vogler requested Mrs. Hewson to take the stock to satisfy the debt due her, and the fact that there were articles taken that had been purchased subsequent to the execution of the mortgage is immaterial, as they were, in terms, embraced in the mortgage. Cook v. Corthell, 11 R. I. 482; Williams v. Briggs, 11 R. I. 476; Moore v. Byrum, (Sup. Ct. S. C., 1879,) 7 Rep. 696; Buck v. Seymour, 46 Conn. 156; s. c., 9 Rep. 79; Evans v. Sprague, 30 Wis. 303; Morrow v. Reed, 30 Wis. 81; State v. Tasker, 31 Mo. 443; Voorhis v. Langsdorf, 31 Mo. 451; Harmon v. Rice, 11 Met. (Mass.) 333; Carrington v. Smith, 8 Pick. 419.

2. As to fraudulent conveyances, see Milburn v. Waugh, 11 Mo. 369; Little v. Eddy, 14 Mo. 160; Gates v. Labeaume, 19 Mo. 17; State v. Tasker, 31 Mo. 445; State v. D'Oench, 31 Mo. 453; Voorhis v. Langsdorf, 31 Mo. 451; Harmon v. Rice, 11 Met. (Mass.) 333; Carrington v. Smith, 8 Pick. 419; Weber v. Armstrong, 70 Mo. 218.

3. At the time of the trial of the interplea, the property had been sold under appellants' attachment, and the sheriff then had the proceeds of the sale in his hands, and was by the court ordered to lend them out until the case at bar should be determined by this court. The goods having been sold, a verdict in the usual form in such cases, and a judgment for their return would have been useless, if not absurd. White v. Graves, 68 Mo. 218; Wooldridge v. Quinn, 70 Mo. 370.

1. FRAUDULENT CONVEYANCE: possession and power of sale in mortgageor.

HENRY, J.

In an attachment suit by Tootle and others against Mr. Vogler, Margaret Hewson filed an interplea claiming the goods seized in the attachment suit, under a chattel mortgage, which the answer to the interplea alleged to have been made in fraud of creditors. It is in usual form, but contains the following: “The said Jno. C. Vogler has this day granted, bargained and sold, and by these presents does grant, bargain and sell unto said Margaret Hewson, administratrix, as aforesaid, the entire stock of goods now owned by said Jno. C. Vogler, and kept and offered for sale at the store room now belonging to the estate of F. Hewson, deceased, in Dayton, Cass county, Missouri, including all the entire stock of dress goods, dry goods, notions and fancy goods, hats and caps, boots and shoes and grocories, which said Jno. C. Vogler purchased from Margaret Hewson, administratrix as aforesaid, as well as all the stock he, the said Jno. C. Vogler, heretofore owned, and which is now added to the said stock purchased as aforesaid, it being the full intent and purpose of this instrument to affect all the entire stock of goods which the said Jno. C. Vogler now has, as well as that which may hereafter be added thereto during the continuance of these presents; * * but should the said Jno. C. Vogler fail or refuse to pay the said note, then the said Margaret Hewson, administratrix as aforesaid, together with such assistance as she may see fit to procure, may take and remove the said stock of goods above described. * *

She may sell or dispose of the stock of goods, * and after paying the expenses of said sale, render the overplus, if any, to the said Jno. C. Vogler.”

It does not “appear, on the face of the mortgage, either expressly or by necessary implication, that the mortgageor was to retain possession with a power of sale.” Weber v. Armstrong, 70 Mo. 218. From the fact, that not only the goods sold to Mrs. Hewson, the consideration for the debt secured by the mortgage, but also all of a stock then owned and added to the stock purchased, and all that he might thereafter add to the stock during the existence of the mortgage, were by its express terms embraced therein, it is not a necessary inference that a power of disposal was given to the mortgageor. It...