Howell v. Bell

• Decision Date: 31 October 1859
• Citation: 29 Mo. 135
• Parties: HOWELL, Defendant in Error, v. BELL et al., INTERPLEADERS, Plaintiffs in Error.
• Court: Missouri Supreme Court

29 Mo. 135

HOWELL, Defendant in Error,

v.BELL et al., INTERPLEADERS, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1859.

1. A stipulation in a deed of trust of land and slaves, which is duly recorded, that the grantor shall remain in possession of the property conveyed until the maturity of the debt secured, does not of itself render such deed of trust void on its face as to creditors by constituting it a conveyance to the use of the grantor within the meaning of the first section of the act concerning fraudulent conveyances.

Error to St. Charles Circuit Court.

Francis Howell instituted suit by attachment against Andrew J. Coshow and William Coshow, and levied the attachment upon certain slaves. James Bell, Abraham S. Matson and George Murdock interpleaded, claiming said slaves by virtue of a certain deed of conveyance executed by William Coshow and wife before the date of the attachment. At the trial of the issue raised upon the interplea, the plaintiffs in the interplea offered in evidence said deed of conveyance. This deed, so far as it is necessary to set it forth, is as follows: “This deed, made and entered into this twentieth day of May, 1858, by and between William Coshow and Elizabeth his wife, of, &c., parties of the first part, and James Bell and Abraham S. Matson, of, &c., parties of the second part, and George Murdock, of, &c., party of the third part, witnesseth, that the said parties of the first part, in consideration of the debt and trust, &c., do, by these presents, grant, bargain and sell, convey and confirm unto the said parties of the second part, the following described real estate situated in the county and state aforesaid, to-wit: [describing it]; also the following described personal property [describing the negro slaves upon whom the attachment had been levied]. To have and to hold the same, with the appurtenances, to the said parties of the second part and to their assigns legally constituted according to the effect of this conveyance, forever. In trust, however, for the following purposes: Whereas the said William Coshow is justly indebted to the party of the third part upon a certain promissory note by him executed and delivered to the said party of the third part, as follows, to-wit: for the sum of $15,000, due thirteen months after date, with interest at the rate of ten per cent. per annum from date till paid. Now if the said promissory note shall be well and truly paid and satisfied at maturity, with the interest as aforesaid to its true tenor and effect, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but if default shall be made in the payment of said note or of the interest due thereon or any part thereof, then this deed shall remain in force, and the said parties of the second part or either of them may take possession of said property, (it having been left in possession of the said party of the first part until the sale hereinafter mentioned,) may proceed to sell,” &c. This deed was recorded May 21, 1858.

The introduction of this deed was objected to on the ground that it was fraudulent on its face. The court sustained the objection. The interpleaders then suffered a non-suit, with leave, &c.

Broadhead, Bates, Lewis and Alexander, for plaintiffs in error.

I. The deed in question is not a conveyance to the use of the grantor. There is no power to dispose of the property or to change its nature; in other words, it is not a mere colorable conveyance, by which nominally the trustee has the property, but really the grantor has the whole title. (See Brooks v. Wimer, 20 Mo. 506; 11 Mo. 369; 20 Mo. 468.) To make the conveyance void on the ground of fraud, it must be to the sole use of the grantor. (See Stanley v. Bunce, 17 Mo. 269; 15 N. Y. 122; 17 Barb. 309; Burr. on Assign. 436; 16 Ala. 560; 22 Ala. 238.) If this deed be void, then all mortgages and deeds of trust are void. By the very terms of the eighth section of the act concerning fraudulent conveyances, the grantor may remain in the possession of the property.

Knox & Kellogg, C. Wells and Hinman, for d...