Hisey v. Goodwin

• Decision Date: 20 December 1886
• Parties: HISEY and others v. GOODWIN and others.
• Court: Missouri Supreme Court

90 Mo. 366

HISEY and others

v.GOODWIN and others.

Supreme Court of Missouri.

December 20, 1886.

Appeal from circuit court, Mississippi county.

M. Ward, for respondents, Hisey and others. Hatcher & Russell, for appellants, Goodwin and others.

NORTON, J.

This is an action of replevin to recover the possession of certain personal property, in which the plaintiff recovered judgment, from which defendant has appealed. It appears from the record that the plaintiff Lonvilla, who was the sister of one H. C. McGruder, claimed the property in question, consisting of a stock of goods, by virtue of a mortgage which was duly executed and acknowledged by said McGruder on the twenty-second January, 1883, conveying the same to her to secure her in the payment of the sum of $800. This mortgage was duly recorded. The defendant claimed the goods by virtue of a levy made by him as constable on said goods in April, 1883, of certain executions issued upon judgments against said McGruder; and claimed that the said mortgage was fraudulent and void as to creditors.

Mrs. Hisey, the plaintiff, testified in her own behalf, and, among other things, stated that when the mortgage was given she left the goods in the possession of McGruder to be sold by him at retail, on his own account; that she supposed he did sell out of them; that she intended he should do so; that he did not make any returns to her for any of them up to the time she took possession, nor afterwards; that she did not expect it, as her debt was not due; that, a month after the mortgage was given, McGruder gave her possession, but that she did not stay there, nor take full charge of the goods, till in September or October, 1883; that she let McGruder continue to run the business as he had done before, but that after February he did so as her agent; that she did not know what he did with the money he took in on sales of the mortgaged stock, but that he never made any returns to her, and she did not expect it, as her debt was not due; that she never went in to take full possession till the twenty-second October, 1883. It was shown by other evidence that McGruder's sign remained over the door after the mortgage as it was before, and that he remained in possession and sold the goods as before. Defendant offered evidence to show that on the same day the mortgage was executed suits were commenced against McGruder by his creditors, which the court refused to receive. The record further shows that the court, although requested...