McGee v. Riddlesbarger

• Decision Date: 31 January 1867
• Parties: ALLEN B. H. MCGEE, Plaintiff in Error, v. JESSE RIDDLESBARGER et als., Defendants in Error.
• Court: Missouri Supreme Court

39 Mo. 365

ALLEN B. H. MCGEE, Plaintiff in Error,

v.JESSE RIDDLESBARGER et als., Defendants in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Kansas City Court of Common Pleas.

Holmes and Black, for plaintiff in error.

I. The defendants can only claim the proceeds of the note by virtue of the record of their mortgage under “Act relating to fraudulent conveyances--R. C. 1855, p. 804, § 8.

Negotiable promissory notes and bills of exchange are not included within that section. The language “personal property” does not include choses in action as there used. It only applies to such property as has a locus in quo, a situs, a place where record can be made. Negotiable paper has no situs--Bank of U. S. v. Huth, 4 B. Mon. 448; Marsh v. Woodbury, 1 Metc. (Mass.) 436. The record of the mortgage as to such property being therefore unauthorized avails nothing--15 Mo. 416.

II The general clause in the mortgage, “all bonds, bills,” &c., is too indefinite to pass any title without delivery.

III. Under our law and practice, in pledges, mortgages and assignments of negotiable paper no written assignment is necessary. Delivery is the gist of the transfer, and without it no title passes as against intervening parties--3 Kent's Com. 119, and notes 1 & 4, 10th ed.

IV. The service of garnishment arrests the debt in the hands of the garnishee, and gives notice of the claimant to the debtor, which, being prior to any notice of assignment by the mortgagees, and stronger than any equity they may have, must prevail--21 Mo. 139. Much less can the defendants after a lapse of five years now come into court, and obtain the proceeds of this note without showing, or attempting to explain why the note has always been in the possession and control of the mortgagor.

Sawyer and Chrisman, for defendants in error.

I. The mortgage from McDaniel to Riddlesbarger et al. conveyed to the grantees all the “notes and evidences of debt” then belonging to the mortgagor. The note referred to in answer of garnishee was one of the notes of garnishee at the date of said mortgage, and was embraced in and transferred by said mortgage-- Page et al. v. Gardner, 20 Mo. 507; 2 Pick. 362; 12 Serg. & R. 269; 3 Gratt. 518.

II. The answer of the garnishee disclosing the fact that the note set up in said answer was negotiable, and his belief that it was assigned to defendants in error before he was garnished, said defendants in error were proper parties in the court below in order to a proper determination of said garnishment and the proceedings thereunder--R. C. 1855, p. 247, § 27, & p. 260, § 77.

III. It matters not that the garnishee was notified of the assignment of the note before garnishment, his being notified before answering, or payment, being sufficient to render him liable as garnishee.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff in error obtained judgment in the Kansas City Court of Common Pleas against Thompson McDaniel, and had execution issued, under which Harrison H. Radcliffe was summoned as garnishee. Radcliffe in his answer stated that in the year 1858 he executed to said McDaniel his negotiable promissory note, due April 1st, 1861, on which there was a balance still due; that he did not know whether at the time of the service of the garnishment, or of his answering, McDaniel still owned the note or not, but that he had been informed and believed that the defendants in error, Riddlesbarger and others, claimed to be the owners of the note by virtue of a mortgage made...