Lesem v. Herriford

• Decision Date: 31 August 1869
• Citation: 44 Mo. 323
• Parties: SAMUEL J. LESEM et al., Appellants, v. HERRIFORD & LOWRY, R. J. HOLLY, Interpleader, etc., Respondent.
• Court: Missouri Supreme Court

44 Mo. 323

SAMUEL J. LESEM et al., Appellants,

v.HERRIFORD & LOWRY, R. J. HOLLY, Interpleader, etc., Respondent.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fourth District Court.

Burgess & Hall, for appellants.

The property having been in Herriford & Lowry, a sale by them is fraudulent unless there was an actual change of possession. A mere constructive change of possession is not sufficient. (4 Hill. 297; 2 Hill. 629; 3 Sandf. 69-73; 42 Mo. 439.)

G. W. Easley, for respondent.

I. Section 10, chapter 67, R. C. 1855, only applies where the immediate vendor remains in possession after the sale.

II. Had Herriford been respondent's immediate vendee, this instruction would have been proper. Herriford might remain in charge of the goods after sale, as clerk of the vendee.

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs instituted their suit by attachment, in the Linn County Circuit Court, against Herriford & Lowry, and caused a saloon and its contents to be levied upon and seized as their property. The respondent, Holly, filed an interplea, and claimed the property as his own. On the trial evidence was given tending to show that Holly had purchased the property from Harlow and Cantwell, and that they had purchased it from Herriford, and that Herriford continued in possession, and was still in possession when the goods were seized by attachment.

The court, at the request of the respondent, gave the following instruction: “6. Although the jury may believe from the evidence that Herriford may have remained in charge of the goods purchased by Holly of Cantwell and Harlow, after the sale from Cantwell and Harlow to Holly, yet if the jury further believe from the evidence that Herriford was in charge of the goods as the clerk, agent, or employee of Holly, then the jury are instructed that the property, being found with Herriford, was the possession of Holly, and was no evidence of fraud.”

The jury found a verdict for the respondent, upon which judgment was duly rendered. This judgment was affirmed in the District Court, and the plaintiffs have brought the case here by appeal.

The action was commenced whilst the statute of 1855 was in force, and is governed by its provisions. By the tenth section of the act in relation to fraudulent conveyances, as contained in that statute, every sale made by a vendor of goods and chattels in his possession or under his control, unless the same was accompanied by delivery in a reasonable time, and followed by an actual and continued change of possession of the thing sold, was presumed to be fraudulent and void as against creditors and subsequent purchasers in good faith, and was conclusive evidence, unless it was made to appear to the jury that the sale was in good faith and without any intention to defraud. The only difference between the provisions in the statutes of 1855 and those of 1865 is that in the former, if the sale was not accompanied with an actual change of possession, the sale was deemed presumptively fraudulent, though this presumption might be rebutted by proof of the fairness and honesty of the transaction. In the latter, where there is no actual change of...