Kuh v. Garvin
| Decision Date | 18 December 1894 |
| Citation | 28 S.W. 847,125 Mo. 547 |
| Parties | Kuh et al., Appellants, v. Garvin; Allen & Allen et al., Interpleaders |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. M. G. McGregor, Judge.
Reversed and remanded.
H. H Bloss and Heffernan & Buckley for appellants.
(1) A mortgage given on a stock of merchandise, providing that mortgagor is to remain in possession and sell mortgaged goods in ordinary course of retail trade, is void as to creditors and the stigma is attached to it if the evidence adduced shows mortgagor is to sell. Bigelow v. Stringer, 40 Mo. 195; Allen v. Berry, 40 Mo. 282; Johnson v McAllister, 30 Mo. 327; Ziegler v. Maddox, 26 Mo. 575; Stanley v. Bunce, 27 Mo. 269; Potter v. McDowell, 31 Mo. 62; State to use v. Holliday, 37 Mo. 500; White v. Graves, 68 Mo. 218; Bullene v. Barrett, 87 Mo. 185; Moser v. Cloes, 23 Mo.App. 420. (2) The taking possession of the goods mortgaged cures the vice above suggested, but the possession must be: First, authorized by the mortgagor; second, actual, open and notorious, and, third, the mortgage and dealings between mortgagor and mortgagee must be bona fide and free from fraud. As to first point see Herman on Chattel Mortgages, p. 217; Barrett v. Timberlake, 57 Mo. 499; Shubble v. Courdt, 56 Mo. 437; Simpson v. Keane, 39 Mo.App. 645; Chandler v. West, 37 Mo.App. 631. As to second see Moser v. Cloes, 23 Mo.App. 420. As to third see Stone v. Spencer, 77 Mo. 356. And the fraud under the statute is according to its legal effect and not intent. Interpleader Smith's conduct in taking a mortgage, allowing defendant to remain in possession and turning over to him $ 300 in cash, taking it out of the bank and leaving with it for Kansas, thus removing it from reach of creditors, was such fraud as vitiates his mortgage. Douglas v. Cissna, 17 Mo.App. 44. The mortgages must be delivered as well as executed before the levy of attachment by plaintiffs. The delivery is birth of the mortgage. Martindale on Conveyances, secs. 204 and 209, and authorities cited. (3) Interpleas are authorized by sections 572, 573 and 579, Revised Statutes, 1889. There is no procedure provided for by statute, hence it is competent for courts to establish rules of practice regarding them. When such rules are established courts and litigants are bound by them the same as statutory provisions. Repalje and Lawrence's Law Dictionary, title, Rule of Court; Doan v. Holly, 29 Mo. 256; Maloney v. Hunt, 29 Mo.App. 379; Bransteth v. Rives, 34 Mo. 318; Tucker v. St. Louis, 63 Mo. 595; Showles v. Freeman, 81 Mo. 540. (4) From the newly discovered evidence that interpleader Needles was not in Springfield until the day after plaintiff's attachment, new trial should have been granted as to him and Washington County Bank; for until they did accept, and a mortgage delivered by grantor to recorder for record does not take effect until acceptance, so far as third parties are concerned, an intervening lienor or attaching creditor will take precedence over it. This was conceded by the trial court, but it strangely forgot to apply it to the evidence, and especially in passing on this newly discovered evidence. Peace v. Danforth, 13 Mo. 960; Majors v. Hill, 13 Mo. 247; Carter v. Mills, 30 Mo. 432; Bank v. Morse, 73 Iowa 174; Day v. Griffith, 15 Iowa 104; Bell v. Bank, 11 Bush (Ky.), 34; Thompson's Heirs v. Jackson, 10 Bush (Ky.), 424; Woodbur v. Fisher, 20 Ind. 387; Goodsell v. Stinson, 7 Blackf. 437; Cobb v. Chose, 54 Iowa 196; McPherson v. Featherstone, 37 Wis. 642; Jackson v. Phipps, 11 Johns. 418; Huey v. Huey, 65 Mo. 692; Herman on Chattel Mortgages, p. 135; Devlin on Deeds, sec. 291. (5) Mrs. Garvin's mortgage is void. The common law, in the absence of proof to the contrary, is presumed to prevail in Illinois, and at common law personal property owned by the wife at time of or coming to her after marriage, belongs to the husband. Woolford v. Stephen, 51 Mo. 443; Alexander v. Lydick, 80 Mo. 341; Benne v. Schnecko, 100 Mo. 250; Meyer v. McCabe, 73 Mo. 236; Hoffheimer v. Lasen, 24 Mo.App. 652; Kerwin v. Doran, 29 Mo.App. 405; Conrad v. Fisher, 37 Mo.App. 371. Nor could the subsequent removal into Kansas, a code state, change the title. Myer v. McCabe, 77 Mo. 236. (6) It will not do to say that in Kansas wife can hold property, also in Missouri, and by mortgaging to interpleader C. J. Garvin, the defendant evidenced an intention to let his wife have or repossess herself of the property acquired in right of his wife, for a husband can not, without a sufficient consideration, transfer to his wife property acquired from her by right of marriage so as to defeat claims of creditors. Potter v. McDowell, 31 Mo. 72.
Vaughan & Cox for interpleaders, respondents.
(1) A husband may waive his right to his wife's personal property and permit her to retain the same free from any claim on his part, and if money, may borrow the same of her and secure the payment to her in the same way as the debt of any other creditor. Coughlin v. Ryan, 43 Mo. 99; Hotlhaus v. Hornbostle, 60 Mo. 439; Bangert v. Bangert, 13 Mo.App. 144; Tootle v. Caldwell, 30 Kansas, 125. (2) This doctrine exists by virtue of the common law, which appellants rightly say was in force in Illinois by presumption at least at the time Mr. and Mrs. Garvin lived there and this is doubly true in states like Missouri and Kansas, which by statute have created the married woman's separate estate. Hart v. Leete, 104 Mo. 329; Botts v. Gooch, 97 Mo. 88; Welch v. Welch, 63 Mo. 57; Clark v. Clark, 86 Mo. 116; McCoy v. Hyatt, 80 Mo. 130; Cooper v. Standley, 40 Mo.App. 138; Gilliland v. Gilliland, 96 Mo. 522; White v. Crosby, 101 Mo. 162. (3) No evidence having been offered as to the law of Illinois or Kansas, the common law is presumed to prevail in Illinois, and the law of Kansas to be the same as that of Missouri. Bain v. Arnold, 33 Mo.App. 633; White v. Chaney, 20 Mo.App. 389; Hoffheimer v. Losen, 34 Mo.App. 652. (4) The delivery of the mortgages to the recorder of deeds of Lawrence county was a delivery to the mortgagees, and this is true without regard to the validity of such delivery as notice. Delivery is a question of intent, and this was evidenced by his leaving the mortgages with the recorder although he may have been mistaken as to the legal effect of it. Major v. Hill, 13 Mo. 248; Pearce v. Danforth, 13 Mo. 360; Lumber Co. v. Anderson, 13 Mo.App. 434; Masterson v. Cheek, 23 Ill. 76; Fain v. Smith, 58 Am. Rep. (Ore.) 288; Bryars v. Spencer, 40 Am. Rep. 215. (5) It is the law of this state that where a conveyance is delivered to the recorder of deeds for the purpose of having the same recorded, it is a delivery to the grantee. In all such cases an assent and acceptance by the grantee is presumed where the instrument is on its face beneficial to the grantee until an actual dissent is shown. Major v. Hill, 13 Mo. 248; Pearce v. Danforth, 13 Mo. 360; Lumber Co. v. Anderson, 13 Mo.App. 434; Ensworth v. King, 50 Mo. 482; Rogers v. Cary, 47 Mo. 235; Burke v. Adams, 80 Mo. 504; Hall v. Hall, 107 Mo. 101; Merrills v. Swift, 18 Conn. 257; Lady Superior v. McNamara, 3 Barbour's Chan. 375; Scrugham v. Wood, 15 Wend. 545; Young v. Gibeau, 3 Wall. 636; Tompkins v. Wheeler, 16 Peters, 119; Lessee of Mitchell v. Ryan, 3 Ohio St. 377; Standiford v. Standiford, 97 Mo. 239. (6) "The rule that the grantor must part with all dominion and control over the deed, does not mean that he must put it out of his physical power to procure possession of it." If the deed is delivered to a third person without reservation and with the intention that it shall take effect and from that time operate as a transfer it is sufficient. Sneathen v. Sneathen, 104 Mo. 210. (7) Not only were the mortgages delivered to the recorder, but there was an actual acceptance of the same by two of the mortgagees and the goods were taken into possession by Mr. Cox, for the benefit of all of the mortgagees. Hannah v. Swarner, 8 Watts, 9; Pearce v. Danforth, 13 Mo. 360. (8) This doctrine of delivery and presumed acceptance applies as above stated, although attachments or other liens may intervene before actual knowledge and acceptance by the grantee. Majors v. Hill, supra; Pearce v. Danforth, supra; Ensworth v. King, supra. (9) By "beneficial in effect," is meant that the deed or mortgage upon its face is beneficial to the grantee. 1 Devlin on Deeds, sec. 289; Hulick v. Scovil, 4 Gilm. 159-176. (10) It is not necessary that evidence should be offered to show affirmatively by the party asserting the delivery that the deed in fact was beneficial. (11) "It is a familiar rule, that whatever is done for the benefit of a party is presumed to be done by his authority or to have been immediately adopted." Thorne v. San Francisco, 4 Cal. 170; Lawson on Presumptive Evidence, 303; Long v. Co., 68 Mo. 432. (12) The judgment that interpleaders recover the proceeds of the sale was proper. Nolan v. Deutsch, 23 Mo.App. 1.
On September 2, 1891, and prior thereto, the defendant Garvin, who was a resident of the state of Kansas, owned and was in possession of a large stock of merchandise at Aurora, Lawrence county, Missouri. The business was under the control of Ollie Garvin, defendant's son, who, with J. A. Powell and Frank Smith as clerks, conducted the business.
On that day the defendant, being heavily in debt and insolvent without informing any of the interpleaders, to whom he was indebted, of his intention so to do, went to Springfield, Missouri, and executed mortgages upon his stock of goods to each one of them for the amount of his indebtedness to them. The mortgages taken in the chronological order in which they were executed and had priority, were as follows: Allen & Allen, bankers; Bank of Aurora; Frank...
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