Johnson v. McAllister's Assignee

• Decision Date: 31 July 1860
• Parties: JOHNSON et al., Appellants, v. MCALLISTER'S ASSIGNEE, Respondent.
• Court: Missouri Supreme Court

30 Mo. 327

JOHNSON et al., Appellants,

v.MCALLISTER'S ASSIGNEE, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. Where a deed of assignment of goods is, on its face, in trust to the use of the grantor therein, it is fraudulent and void as against creditors, existing and subsequent, and purchasers; and the courts will so declare as a matter of law.

2. Where, however, the deed is not void on its face, and extrinsic evidence is adduced to show it to be fraudulent, the court will submit the issue of fraud, under proper instructions, to the jury, who will determine, as a matter of fact, whether the deed is fraudulent or not.

3. The fact that a deed of assignment gives the assignee the privilege of selling the assigned goods on a credit does not render the deed void on its face.

4. The thirty-ninth section of the act concerning voluntary assignments (R. C. 1855, p. 210), does not prevent a debtor from assigning his property for the benefit of a portion only of his creditors; said section operates to invalidate all provisions in such assignments which give preferences among the designated creditors; the designated creditors are entitled to be paid pro rata out of the proceeds of the assigned property.

5. The reservation to the grantor in a deed of assignment for the benefit of certain designated creditors of any surplus there may be after the payment of the debts of such preferred creditors does not render the deed void on its face.

Appeal from Holt Circuit Court.

H. Johnson and others in April, 1859, recovered a judgment against John B. McAllister. On the 20th of May, 1859, an execution was issued, placed in the hands of the sheriff, and levied the same day on a stock of goods as the property of said McAllister. After the sheriff had made this levy, George B. Chadduck claimed to be the owner of said goods by virtue of a deed of assignment executed by the said McAllister for the benefit of certain creditors. After two indecisive trials of the right of property by juries summoned by the sheriff--the juries disagreeing--it was agreed by all the parties that the sheriff should go on and sell the goods, and hold the money received therefor in his hands until the next term of the Holt circuit court, at which time the rights of the parties should be determined by the court upon a motion made by said Chadduck for an order requiring the sheriff to pay over the money received to said Chadduck. This motion was accordingly made.

At the hearing of this motion, the deed of assignment referred to above was read in evidence against the objection of plaintiffs. It is as follows: “This deed of assignment made and entered into this 20th day of May, 1859, by and between John B. McAllister, of the county of Holt, &c., of the first part, and George B. Chadduck, of, &c., of the other part, Witnesseth: That, whereas the party of the first part, being largely indebted to sundry and divers persons, and especially, to these following, viz.: Oliver Bennett & Co., Woods, Christy & Co., [enumerating many others, but not specifying the amounts due;] and whereas said party of the first part is desirous to secure said creditors in the payment of the amounts due thereon from him; therefore, in consideration of the premises, and the further consideration of one dollar, &c., has this day and by this deed does bargain, sell, convey and deliver unto the party of the second part, the following personal property, viz.: All the stock of general merchandise now in the store of the party of the first part, in Oregon, Holt county, Missouri, consisting of dry goods, clothing, boots, shoes, hats, caps, millinery goods, hosiery, groceries, hardward, iron, nails and cutlery, together with the store fixtures; one roan horse; one buggy and harness. And the said assignee, party of the second part hereto, is required, as fast as may be, to sell said property at such times and on such terms as to him may seem best, so that the same shall be fully sold and settled up by the first of September, A. D. 1859; and as fast as may be to pay the parties herein secured the amount of indebtedness of the party of the first part on his individual account, and that is due and mature at this date; and after the payment of the expenses of this assignment and the debts herein provided for, said assignee shall pay to the party of the first part any surplus that may be in his hands. In testimony whereof, the parties, &c. [Signed] J. B. McAllister (seal), George B. Chadduck (seal.)”

This deed, as shown by the testimony of the clerk of the Holt circuit court, who is ex officio recorder, the above deed of assignment was filed for record in the forenoon of the 20th of May, 1859; the execution, under which the levy was made, was issued by him as clerk in the afternoon of said day. Evidence was adduced to show that Chadduck was placed in possession of said stock of goods in the forenoon, and that McAllister was seen handling goods in the afternoon in the presence of another as if he was exhibiting them for sale. The amount of indebtedness of said McAllister to a portion of the...