Knoop ex rel. Miller v. Nelson Distilling Co.

• Decision Date: 17 May 1887
• Parties: FRED. KNOOP EX REL. JOHN MILLER, Respondent, v. NELSON DISTILLING COMPANY ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 303

FRED. KNOOP EX REL. JOHN MILLER, Respondent, v. NELSON DISTILLING COMPANY ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS Judge.

Transferred to the supreme court.

LOUIS H. BREKER, and MUENCH & CLINE, for the appellants: The cause should have been taken away from the jury. Wright v. McCormick, 67 Mo. 428; Stewart v. Bergstrom, 79 Mo. 524. The conveyance was a legal fraud as to creditors prior and subsequent, and the court should so declare. Such has been the universal construction of our courts of section 2496, chapter 34, page 417, of the Revised Statutes. The language of the section itself is too clear to admit of any other interpretation. Shaw v. Tracy, 83 Mo. 224; The State ex rel. v. McBride, 81 Mo. 349; Crane v. Timberlake, 81 Mo. 432; Stewart v Nelson, 79 Mo. 522; Bohannon v. Combs, 79 Mo. 305; Stone v. Spencer, 77 Mo. 356; Shelley v. Boothe, 73 Mo. 74. If, after the alleged sale, the vendor remained in the apparent possession and control of the goods, exercising apparent ownership and control over the same, it makes no difference whether this was with or without the consent of the vendee. The law only takes notice of the facts as they appear to the public, and this fact can not be known from mere rumor. Bump on Fraud. Con. [2 Ed.] 112, 113, 114; Claflin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; How v. Taylor, 52 Mo. 597; Bishop v. O'Connell, 56 Mo. 158; Burgert v. Borchert, 59 Mo. 80; Wright v. McCormick, 67 Mo. 426.

C. DAUDT, for the respondent: The object of the statute (sect. 2505) is to prevent the vendor from deriving a false credit from the continuance of his apparent ownership. The law, for this reason, requires an actual and continued change of the possession of the things sold. It is, therefore, claimed that section 2505 does not apply in the present case. Lesem v. Herriford, 44 Mo. 324. The instructions given on behalf of the defendant did not contain the modification required by the statute, that, as to the change of the possession, " regard must be had to the nature of the property." The State to use v. Schnake, 21 Mo.App. 349.

OPINION

THOMPSON J.

The Nelson Distilling Company sued out an attachment against F. W. Stumberg, before a justice of the peace. It was put into the hands of Fred. Knoop, a constable, who executed it by levying upon a stock of merchandise in the possession of Stumberg. John Miller, the relator, demanded these goods, claiming them by virtue of a bill of sale from Stumberg to him, and, thereupon, the constable demanded an indemnifying bond of the Nelson Distilling Company, which was given. The goods were retained by the constable, appraised, and sold, and the proceeds applied to the purposes of the attachment suit. This action is brought upon the indemnifying bond. The question at issue at the trial was, whether the bill of sale, under the circumstances, passed a title to Miller, which was good as against the other creditors of Stumberg, and whether there had been such an open, visible, and notorious change of possession as satisfied the requirements of section 2505, of the Revised Statutes, and the decisions of the supreme court thereunder.

Miller, who will hereafter be designated as the plaintiff, was the father-in-law of Stumberg. He testified to the effect that, when Stumberg married his daughter, which was in February, 1881, he bought the store, and the house and lot from Stumberg; that he gave Stumberg for the same five thousand dollars, which he paid in certain promissory notes; that he paid the money to Stumberg on these notes, from time to time, as the latter needed it. Stumberg was building, at the time, and needed the money. The plaintiff gave Stumberg the first money when the latter bought the lot. Stumberg paid seven hundred and fifty dollars for this lot, and the plaintiff gave him the other money as the building progressed. On the seventh day of August, 1885, which was the date of the bill of sale from Stumberg, under which the plaintiff claims, the plaintiff was security for Stumberg upon several promissory notes, amounting, in the aggregate, to the sum of two thousand eight hundred and twenty dollars. Stumberg was largely indebted, embarrassed, and the year before the date of the bill of sale, had solicited the plaintiff to take a conveyance of his property. The plaintiff had declined, advising Stumberg that trade might improve, and that he might pull through. In this state of things, Stumberg, on the seventh of August, 1885, executed to the plaintiff a bill of sale of his stock in trade, store fixtures, his safe, his horse, two cows, twelve hogs, one spring wagon, one buggy, and one set of harness, being, it appears, all the personal property which he had, for the consideration, as expressed in the bill, of two thousand dollars. On the same day Stumberg executed to the plaintiff a warranty deed of the house and lot, on which his store was situated, for the expressed consideration of three thousand dollars. The plaintiff, on receiving these conveyances, surrendered up to Stumberg five thousand dollars of the notes of the latter, which the plaintiff held, it seems, on account of the indebtedness of Stumberg to him for this property. On making these conveyances Stumberg immediately left for Kansas City. Both conveyances were recorded. There was no sign above the door of the store, but they attracted customers by means of what, in the testimony, is called a " " show," that is, by placing articles of goods outside the store on the sidewalk. Upon the execution of the bill of sale, the " show" was taken in and was not again put out. The plaintiff directed his daughter, wife of Stumberg, to continue in the possession and to sell off the goods. The extent of the change of possession which took place, and the use to which the goods thus conveyed to the plaintiff was put, according to the plaintiff's testimony, can best be explained by quoting it: " When I got the bill of sale and deed, I took it to the recorder's office to have them recorded; went back to the store and took possession; told my daughter to sell the goods to the best advantage. * * * I did not go to Stumberg first; he came to me. He came to my house on the sixth of August. These deeds were made on the seventh. We agreed at my house about the price. I did not know the value of the property at the time. He made the proposition, and I accepted. He wanted to sell a year ago, to me, but I told him to try another year. He did not tell me, when he was at my house, that he owed other persons; he told me he could not make a living, nor pay the interest; that is why I bought. I knew that he was considerably in debt in bank, and on other notes, which I indorsed. I knew he owed Hackman one thousand five hundred dollars, on which note I was security. Stumberg came up in a buggy, and next day we came to St. Charles; got there about nine o'clock; we stopped at my daughter's and went direct to lawyer Daudt's office, where the papers were fixed. He handed me the deeds and I handed him five thousand dollars of his notes. I took the deeds to the recorder's office. After this I went down town and went to my daughter's house; Stumberg was with me. He took in the " show." By the word " show" I mean the goods placed on the outside, on the pavement, for exhibition. I told my daughter to sell at the best advantage, and as soon as she could. My son-in-law left that afternoon for Kansas City. In the evening I locked the door, and unlocked the store in the morning. Stumberg did not hand me the key in the morning; it remained in the door until I took it out in the evening. I staid at my daughter's house that night, and left next evening. After I opened the store next morning, my daughter came down, and I handed the key to her, and told her to sell for me. The goods looked the same after the bill of sale as before. No inventory was ever made of the goods, nor did I get an inventory, or ask for one; I trusted to them altogether. I closed the store and opened at the usual hour; the only difference, the " show" was taken in. My son-in-law nor daughter never rendered an account to me of the goods sold, nor did I ask it; I never told them to keep it. I told them to take out of the store whatever they needed. I gave them the privilege to take out of the store whatever they wanted. They kept no account of whatever they took. They did not render any account of what they took, nor did I ask them for it, nor did they pay me for what they took, nor did I ask it of them, nor did they charge me anything for selling my goods. I came to town some four or five times, after the bill of sale. I asked Stumberg for money; he gave me twenty-five dollars, this is all I got of the sales. Mrs. Stumberg paid me money two or three times. After this first she gave me one hundred dollars, or one hundred and twenty-five dollars, or over. I gave it to Stumberg. I do not think I counted the money; my daughter said, ‘ Papa, here is one hundred and twenty dollars.’ Before I went away I handed it to Stumberg again, and told him to pay notes on which I was security. The first time, I got twenty-five dollars, or thirty dollars; the second time, one hundred and twenty dollars, I got from my daughter. I do not know whether my son-in-law paid any of the notes or not, with this money. I never asked him. The next time, Stumberg paid me in the store something like one hundred dollars, did not count it, took his word for it. I told him to keep it until he got enough to pay a note on which I am security. I got something after this, but told them to keep it, about one hundred and twenty-five dollars or one hundred and thirty dollars. There were more offers to pay...