Jaffrey v. Mathews

• Decision Date: 19 February 1894
• Citation: 25 S.W. 187,120 Mo. 317
• Parties: Jaffrey et al., Appellants, v. Mathews et al
• Court: Missouri Supreme Court

25 S.W. 187

120 Mo. 317

Jaffrey et al., Appellants, v. Mathews et al

Supreme Court of Missouri, First Division

February 19, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Henry Wollman for appellants.

(1) The instrument before the court, when read between its four corners, is a voluntary assignment. If there were any doubt caused by the fact that defendants have attempted by inserting a sham "defeasance" clause, to create an ambiguity as to its meaning, then when it is read in the light of surrounding circumstances, it is an assignment. Whenever courts are in doubt as to whether an instrument is an assignment or not, that doubt should be resolved in favor of holding it an assignment and bringing it within the operation of the statute governing assignments, because that is remedial legislation of the highest and most beneficent character. Kiser v. Daunenberg, 88 Ga. 541; Harkrader v. Leiby, 4 Ohio St. 602; Winner v Hoyt, 66 Wis. 234; Preston v. Spaulding, 120 Ill. 208; White v. Cotzhauzen, 126 U.S. 329; Lucas v. Railroad, 32 Pa. St. 458; Sexton v Anderson, 95 Mo. 373; Larabee v. Bank, 114 Mo. 592. (2) The word "voluntarily" as used in the statute means nothing except that it is a conveyance voluntarily made by the party himself and not by a court, as an assignment in bankruptcy is. Manny v. Logan, 27 Mo. 528. (3) Where a conveyance is to a third person and aims and designs to create a fund immediately and without any conditions out of which the defendant shall be paid eventually, it constitutes an assignment. State v. Benoist, 37 Mo. 500; Crow v. Beardsley, 68 Mo. 435. (4) This instrument contains what is called a "defeasance" clause, which simply provides that in case the debts are paid the conveyance should become void. Every assignment is subject to such a condition whether the parties write it in or not, and putting it there adds nothing to and takes nothing from the instrument. It does not change its character at all, the other provisions showing that the parties intended to make what in legal effect is an assignment. Penzel Co. v. Jett, 54 Ark. 428.

John R. Walker and Peak & Ball for respondents.

(1) After executing the deeds of trust, Mathews could not affect the instruments or change their nature by his statements and declarations. Gates v. Labeaume, 19 Mo. 17; Sutter v. Lackmann, 39 Mo. 91; Weinrich v. Porter, 47 Mo. 293; Bank v. Russell, 50 Mo. 531; Steward ex rel. v. Thomas, 35 Mo. 202; Albert v. Besel, 88 Mo. 150; Douglass v. Cissna, 17 Mo.App. 44; Meredith v. Wilkinson, 31 Mo.App. 1; Farrar v. Snyder, 31 Mo.App. 93; Zeliff v. Schuster, 31 Mo.App. 493. (2) "The assignment law of this state is not in letter or spirit, a bankrupt or insolvent debtor's act. A debtor, whether solvent or insolvent, may, in good faith, sell, deliver in payment, mortgage or pledge the whole or any part of his property for the benefit of one or more of his creditors, to the exclusion of others." Hargadine v. Henderson, 97 Mo. 375; Murray v. Cason, 15 Mo. 378; Ames v. Gilmore, 59 Mo. 537; Shelly v. Boothe, 73 Mo. 74; Dougherty v. Cooper, 77 Mo. 528; Foster v. Mill Co., 92 Mo. 79; Larrabee v. Franklin Bank, 114 Mo. 592; Singer v. Goldenburg, 17 Mo.App. 549; Gummersell v. Hanbloom, 19 Mo.App. 274; Shapleigh v. Baird, 26 Mo. 322; Sampson v. Shaw, 19 Mo.App. 274. (3) The instrument in controversy is a deed of trust, and not an assignment. It possesses all the features which distinguish a deed of trust from an assignment. Very few of the debts secured were due at the time, and on the day it was agreed to execute it, May 26, 1890, a note was made to the First National Bank of Kansas City in the sum of $ 6,176.53, for borrowed money due in ninety days and the bank surrendered a deed of trust then held by it on the real estate; and the past due notes held by Hawkins were surrendered and a new note payable in sixty days was given him for $ 8,135. This money advanced, surrender of deed of trust, and extension given was the consideration for the deeds of trust. It contains a clause of defeasance which clearly and definitely characterizes it a deed of trust and not an assignment. Crow v. Beardsley, 68 Mo. 435; Hargadine v. Henderson, 97 Mo. 375; Larrabee v. Franklin Bank, 114 Mo. 592; Sampson v. Shan, 19 Mo.App. 274; Mills v. Williams, 31 Mo.App. 447; Smith v. Thurman, 29 Mo.App. 186; Assignment of Zwang, 39 Mo.App. 356; Bank v. Bank, 136 U.S. 223; May v. Tenny, 148 U.S. 60. (4) The fact that immediate possession was delivered to the trustee, does not change the nature of the instrument from a deed of trust to that of an assignment. Crow v. Beardsley, 68 Mo. 435; State ex rel. v. Cooper, 79 Mo. 464; Hargadine v. Henderson, 97 Mo. 375; Smith v. Thurman, 29 Mo.App. 186; Assignment of Zwang, 39 Mo.App. 356; Bank v. Bank, 136 U.S. 223; May v. Tenny, 148 U.S. 60.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

On the twenty-seventh of May, 1890, William T. Mathews, a merchant of Kansas City, executed and delivered to the defendant, Robert L. Yeager, a deed of trust conveying to the said Yeager, as trustee, all his interest in certain real estate in said city, to secure the payment of certain debts due the other defendants herein. On the same day he executed and delivered to said Yeager the following instrument of writing:

"This conveyance made and entered into this twenty-seventh day of May, 1890, by and between William T. Mathews, of Kansas City Jackson county, Missouri, party of the first part, and R. L. Yeager, of Kansas City, Missouri, party of the second part, and the First National Bank of Kansas City, Missouri, H. B. Claflin & Co., and Dunham, Buckley & Co., of the city of New York, state of New York, and Continental National Bank of the city of St. Louis, Missouri, and Charles M. Hawkins, of the county of Jackson and state of Missouri, parties of the third part, witnesseth: That the said party of the first part, in consideration of the debts and trust hereinafter mentioned, and of the sum of one ($ 1) dollar, to him in hand paid, the receipt of which is hereby acknowledged, does by these presents bargain, sell, transfer and set over unto the said party of the second part, his successors and assigns in trust, the following described property, to wit: All the stock of goods of every kind and description, consisting of dry goods, cloaks, wraps, hosiery, underwear and notions, the property of the said party of the first part, and situate in the brick store building, four stories high with basement, known as numbers 1109 and 1111 Main street, in Kansas City, Missouri, and now occupied by the party of the first part as a general dry goods store, together with all the show cases, shelving, counters, safes, and all fixtures of every kind in said store contained; also one gray horse and one bay horse used in the delivery wagons, and also two delivery wagons and two sets of harness; also all book accounts and evidences of debt for goods sold out of said store, and also the lease now held by the said party of the first part on said building, to have and to hold the same unto said party of the second part and his successors forever, in trust, however, for the following purposes, to wit:

"Whereas said party of the first part is indebted to the said First National Bank of Kansas City, Missouri, in the sum of thirty-nine thousand, one hundred and seventy-six dollars and fifty three cents, as evidenced by seven promissory notes as follows: One note for three thousand dollars, dated April 11, 1890, due ninety days after date; one note for four thousand dollars, dated May 7, 1890, due ninety days after date; one note for sixty-five hundred dollars, dated April 15, 1890, due ninety days after date; one note for forty-five hundred dollars, dated April 23, 1890, due ninety days after date; one note for ten thousand dollars, dated May 19, 1890, due ninety days after date; one note for five thousand dollars, dated March 24, 1890, due ninety days after date; and one note for six thousand, one hundred and seventy-six dollars and fifty-three cents, dated May 26, 1890, all of said notes being payable to the order of said First National Bank of Kansas City, Missouri, with interest from maturity at the rate of ten per cent. per annum, and all being signed 'William T. Mathews,' John Mathews. And whereas said party of the first part is indebted to said H. B. Claflin & Co. in the sum of sixteen thousand, three hundred and sixteen dollars and ninety-two cents, which said indebtedness is evidenced by six promissory notes described as follows: One note for thirty-six hundred and ninety-four dollars and fifty-one cents, dated April 9, 1890, due ninety days after date; one note for twenty-five hundred and fifty-one dollars and sixty-one cents, dated April 9, 1890, due ninety days after date; one note for thirty-seven hundred and seventy-five dollars and eighty-five cents, dated April 9, 1890, due four months after date; one note for twenty hundred and thirty-nine dollars and twelve cents, dated April 15, 1890, due four months after date; one note for twenty-five hundred and thirty-one dollars and six cents, dated April, 1890, due six months after date, all signed by William T. Mathews, John Mathews; also one note for seventeen hundred and twenty-four dollars and seventy-seven cents, dated May 16, 1890, due four months after date, signed, William T. Mathews. And, whereas said party of the first part is indebted to said Dunham, Buckley & Co. in the sum of fifteen thousand, seven hundred and eighty-eight dollars and fifty nine cents, which said indebtedness is evidenced by nine promissory notes described as follows: One note for sixteen hundred and ninety-two dollars and eighty-nine cents, dated March 31, 1890, due in sixty days after...