Johnson v. Jeffries

• Decision Date: 31 July 1860
• Citation: 30 Mo. 423
• Parties: JOHNSON, Appellant, v. JEFFRIES, Respondent.
• Court: Missouri Supreme Court

30 Mo. 423

JOHNSON, Appellant,

v.JEFFRIES, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. A mortgage or deed of trust of personal property is valid between the parties thereto, although possession may not accompany the deed, and no record be made thereof.

2. The eighth section of the act concerning fraudulent conveyances, (R. C. 1855, p. 804,) providing that no mortgage or deed of trust of personal property shall be valid against any other person than the parties thereto, unless possession thereof be delivered to and retained by the mortgagee, or trustee, or cestui que trust, or unless the mortgage or deed of trust be acknowledged or proved and recorded, can not be invoked by all persons indiscriminately, whether trespassers or wrongdoers; to entitle a person to invoke the aid of this provision against the mortgagee, or trustee, or cestui que trust, he must show himself related in some way to the parties to the instrument.

Appeal from Greene Circuit Court.

The facts sufficiently appear in the opinion of the court.

Edwards & Ewing, for appellant.

I. The court erred in excluding from the jury the deed from Bartlett to plaintiff. As between the parties to the deed, it is valid, although not acknowledged or proved, as the law requires to make it good against third persons. The defendant does not claim that he is the owner of the slave, but that plaintiff is not. He is not a third party within the meaning of the eighth section of the act concerning fraudulent conveyances. (R. C. 1855, p. ___, § 8.) The evidence shows conclusively that the slave was the property of Bartlett, and that defendant is merely in possession of her without a shadow of title, without setting up any claim whatever to the title, and without any authority whatever. The court erred in excluding the declarations of the defendant; so also in excluding the deposition of Dales.

EWING, Judge, delivered the opinion of the court.

This was an action to recover the possession of a slave which was alleged to be unlawfully detained by Jeffries. The plaintiff's claim is based upon a mortgage or deed of trust with power of sale executed to him by one Bartlett to secure the payment of certain promissory notes in which he was Bartlett's security, and which he alleges he paid, whereby he became entitled to the possession of the slave.

The answer denied that Bartlett was the owner of the slave, and that the defendant unlawfully detained her from plaintiff's possession. On the trial the...