Jacobi v. Jacobi

• Decision Date: 17 November 1890
• Citation: 101 Mo. 507,14 S.W. 736
• Parties: JACOBI v. JACOBI et al.
• Court: Missouri Supreme Court

14 S.W. 736

101 Mo. 507

JACOBI v. JACOBI et al.

Supreme Court of Missouri.

November 17, 1890.

VOLUNTARY ASSIGNMENT — GENERAL CREDITORS — CHATTEL MORTGAGEE.

1. Where the general creditors of an insolvent, whose claims have been allowed by the assignee in a voluntary assignment, are admitted to defend, on behalf of the assignee, a suit for the foreclosure of a prior chattel mortgage on his stock in trade, they cannot contest the validity of the mortgage on the ground of its being a conveyance to the use of the mortgagor; as such mortgage is valid as to the mortgagor, and the subject-matter of the assignment was only his remaining interest in the estate after satisfaction of the mortage.

2. The chattel mortgagee of an insolvent who has sued to foreclose his mortgage, and then presented his claim to the assignee in a voluntary assignment by the insolvent, and had it allowed, is not thereby estopped to maintain such suit, where the assignment covers not only the mortgaged property, but all the accounts and choses in action of the mortgagor.

Error to circuit court, Marion county.

This is a suit to foreclose a chattel mortgage on a stock of groceries and other merchandise. In 1881, plaintiff became surety for defendant Enoch J. Jacobi on a note of the latter to a third party for $2,500, and interest at 8 per cent. per annum, payable one year thereafter. In 1883, the note remaining yet unpaid, overdue, Enoch J. Jacobi executed said mortgage to plaintiff to indemnify him as such surety. Plaintiff then took up the said note. The amount of his payment on that account, with interest thereon, constitutes the debt which remains due him from the mortgage debtor. At the time of trial, it about equaled the proceeds of the sale of the goods mentioned later on. Some months after plaintiff received the chattel mortgage, Enoch J. Jacobi made a statutory general assignment of the stock covered by it, and of his mercantile accounts, choses in action, and other property, to Joseph Retti for the benefit of creditors. In January, 1884, Mr. Retti took possession of the stock, and afterwards duly sold it for $2,790.20, cash, under an order of the circuit judge in the assignment proceedings. After the assignment, and before the sale by the assignee, plaintiff brought this suit to foreclose the mortgage against the mortgagor and his assignee, who had taken possession of the goods. The mortgagee, Ludwig, pending his suit of foreclosure, on the 14th day of March, 1884, while the assignee was allowing and adjusting demands, presented, and had allowed by the assignee, the whole of his claim against Enoch J. Jacobi. The allowance of this claim was opposed by the intervening creditors, and, when made by the assignee, an appeal was taken by the creditors to the circuit court, where the judgment of the assignee was affirmed. The assignee, Retti, filed an answer in this suit, setting up the fact of the assignment to him, the sale of the stock, giving a list of claims proved and allowed, (including that of plaintiff,) aggregating in amount much more than the total sum realized from the sale of the goods, and upon the facts asked that the general creditors of Enoch (who disputed the validity of the mortgage) be made parties defendant in this suit, and that he (the assignee) be allowed to bring the money (some $2,790) into court to abide the determination of the suit, which was thereupon allowed to be done. By leave of court, a large number of creditors thereupon appeared and filed an answer to plaintiff's petition, alleging that the latter, after the institution of his suit of foreclosure, had presented to, and had had allowed by, the assignee the entire claim forming the basis of this suit; that the assigned property was the same as that described in the mortgage, and that having so presented: and had his claim allowed, he was estopped to foreclose his mortgage.

They further alleged that the mortgage was fraudulent and void, because it appeared upon its face and that the facts aliunde disclosed that it was made upon an understanding and agreement that the mortgagor, Enoch, should remain in possession of the goods, sell them for his use, and continue to do business as before, as he had accordingly done. Issues were joined, and the case tried on the defenses set up in the answer of the intervening creditors. The facts of the first defense were admitted, and the court held that plaintiff was not thereby...