Martin v. Rice

• Decision Date: 31 March 1857
• Court: Missouri Supreme Court
• Parties: MARTIN, Appellant, v. RICE & MADDOX, Respondents.

24 Mo. 581

MARTIN, Appellant,

v.RICE & MADDOX, Respondents.

Supreme Court of Missouri.

March Term, 1857.

1. A deed of assignment of a stock of goods to a trustee for the benefit of certain designated creditors, which provides that the grantor shall be allowed to remain in the possession of the property assigned, and to sell and dispose of the same in the usual course of business, being void upon its face as a matter of law as against creditors, will not be made good, as against a creditor who has not assented thereto, by a subsequent deed of the grantor relinquishing to the trustee all the rights and privileges reserved to the grantor by the above provision, and providing that the trustee “may, at any time when he shall see fit, seize and take possession of the said property, or any part thereof, wherever he may find the same.”

Appeal from St. Louis Court of Common Pleas.

This was an action for the delivery of personal property. The plaintiff claimed to have a special property in the goods as trustee for the creditors of True W. Hoit. The plaintiff relied upon two deeds from Hoit to himself--one dated November 20th, 1854, and the other dated December 12th, 1854. On the 8th day of February, 1855, Rice, one of defendants, obtained a judgment against Hoit; execution was issued thereon, and on the 12th day of March, 1855, defendant Maddox, who was the sheriff of St. Louis county, levied the same upon the goods in question. The answers of defendants allege that said deeds are fraudulent on their face and void. The first of said deeds is set forth in the opinion of the court in the case of Martin v. Maddox, 24 Mo. 575. The second of said deeds is as follows: “Whereas, by deed dated November 20th, 1854, and recorded, etc., I, True W. Hoit, did convey unto Missionary E. Martin certain goods, wares and merchandise therein described, in trust to secure to some of my creditors the amounts due to them, as set out in said deed; and, whereas, it is in said deed provided that I shall have the right to remain in possession of said property, and to sell and dispose of the same until default made, as in said deed set out; now, therefore, for divers good and valuable considerations moving thereunto, I do hereby release and relinquish unto the said Missionary E. Martin all my rights and privileges reserved to me by the provision aforesaid, so that he may, at any time when he shall see fit, seize and take possession of said property, or any part thereof, wherever he may find the same. In witness whereof, I have hereto set my hand and seal, this 12th day of December, 1854. [Signed.] True W. Hoit. (Seal.)”

The defendants objected to the introduction of the above deeds on the ground that said deeds, and each of them, were void and of no effect as against the defendants. The court sustained the objection, and refused to allow the same to be read to the jury. The plaintiff then offered to prove that “the property specified in the plaintiff's petition was a portion of the property and merchandise mentioned in the said deed made by True W. Hoit, dated November 20th, 1854; that the plaintiff was in possession of the property described in his petition at the time the same was taken and carried away by the defendant, Turner Maddox; that Charles Rice, one of the defendants, directed and instructed his co-defendant, Maddox, to take and carry away the property in question at the time it was taken--he, the said Rice, having first indemnified said Maddox against damage for such taking; and further, the plaintiff offered to prove that the several creditors mentioned in said deed made by T. W. Hoit aforesaid, dated November 20th, 1854 [the name of Rice does not appear in said deed], assented to said deed and the conditions thereof before the defendant, Rice, recovered his judgment against Hoit.”

All the testimony so offered by plaintiff was excluded by the court on the motion of the defendants. The plaintiff thereupon submitted to a non-suit, with leave to move to set the same aside.

Krum & Harding, for appellants.

I. The court below erred in excluding the evidence offered by the plaintiff below, as well as that which is embraced in his offer to prove. If the first deed was fraudulent under the act concerning fraudulent conveyances (R. C. 1845), the second deed, coupled with the possession of the property by the trustee, remedied the defect.

II. The assent of the creditors to the first deed took away all objection thereto.

III. Although the first deed may have been absolutely void as a conveyance, yet the second deed, by referring thereto, made it a part of itself, and the two form one instrument not void or voidable on its face, taking effect prior to the levy in this case.

Hill, Grover & Hill, for respondents.

I. The deed of November 20th, 1854, was in trust for the use of the grantor, and, therefore, absolutely void as against Rice. (R. C. 1845, p. 525; 15 Mo. 459; Brooks v. Wimer, 20 Mo. 506; Coalter v. Robertson, 14 S. & M. 18; Scott v. Duffey, 14 Penn....