Miller v. Tallent
| Decision Date | 09 May 1919 |
| Docket Number | No. 2432.,2432. |
| Parties | MILLER v. TALLENT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.
Suit by I. W. Miller against Frank Tallent. From judgment for defendant, plaintiff appeals. Affirmed.
John V. Noell, of St. Louis, and J. W. Caldwell, of Marble Hill, for appellant.
Mozley & Blanton, of Benton, for respondent.
This is a replevin suit for a roan mare in which the defendant had a verdict and judgment for the return to him of this mare, which had been taken from him under the replevin writ and given to the plaintiff. The plaintiff appeals.
The defendant's possession and claim of title is based on his purchase of the animal at an execution sale under a judgment against Israel Bloom. At the time of the levy on this animal under the execution she was in the possession of said Bloom who was exercising ownership. The plaintiff, Miller, bases his claim of ownership and right to possession on a certain bill of sale signed and executed by said Bloom whereby I, "to secure I. W. Miller as indorser for me on notes and papers that may or have been signed by the said I. W. Miller, hereby assign and set over to the said I. W. Miller fifteen head of horses now in my possession, and all other stock or other property that I may hereafter own."
This instrument further provides that all sales of such property by Bloom shall be with the consent of Miller, and all proceeds of sales shall be at his disposal, and that Bloom shall act as Miller's agent. Bloom is the uncle of plaintiff, and lived in another county. This bill of sale was not recorded, and no possession of the property conveyed was taken by plaintiff. The grantor in the bill of sale continued in possession of the property sold or mortgaged and dealt with it as his own, though accounting to Miller for the proceeds, keeping the money in a bank in his name and checking it out by checks signed in Miller's name by Bloom. The execution creditor had this mare levied on and sold as the property of Bloom, thereby ignoring any right of Miller therein, though at the sale Miller asserted his ownership under the bill of sale and warned all purchasers that he would enforce his claim by legal proceedings.
It is apparent that, if the execution creditor of Bloom had a right to subject the property in question to levy and sale under his execution to satisfy his judgment debt, then the title "of the purchaser at such sale will be protected. The whole question depends on whether the bill of sale to plaintiff is void as to execution creditors. That such bill of sale is in the nature of a mortgage to secure or protect the plaintiff as grantee rather than a present transfer of absolute title to such grantee is apparent from a reading of such instrument. Treating it as a mortgage, then, under section 2861, R. S. 1909, it is void as to execution creditors because not recorded, and no possession of the mortgaged property being given to the mortgagee. When the possession of mortgaged property is retained by the mortgagor, and the mortgage is not recorded, such mortgage is void as to creditors, and the mortgaged property may be levied upon and sold in satisfaction of a judgment debt against the mortgagor; and it makes no difference in such cases that the judgment creditor and purchaser are informed of the unrecorded mortgage. Wilson v. Milligan, 75 Mo. 41; Martin-Perrin Mercantile Co. v. Perkins, 63 Mo. App. 310, 314; Rawlings v. Bean, 80 Mo. 614, 619.
The same result follows if we regard this instrument as an absolute conveyance in præsenti of the property mentioned, for by section 2887, R. S. 1909:
"Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the thing sold shall be held to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith."
Such sales of personal property not followed by a change of possession to the vendee are void as to execution creditors of the vendor, and title cannot be asserted by the vendee against the execution purchaser from the vendor. Notice to or knowledge of such purchaser of the attempted void sale is of no avail. Cummins v. Lumber Co., 130 Mo. App. 557, 562, 109 S. W. 68; Collins v. Wilhoit, 108 Mo. 451, 458, 18 S. W. 839; Claffin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336.
The bill of sale under which plaintiff claims title does not therefore, under the unquestioned facts, afford him a basis of recovery as against the defendant, and the trial court should have directed a verdict for defendant. The question of error in the instructions and in excluding certain evidence as to Bloom informing certain persons of plaintiff's bill of sale and relationship to this property is unimportant. We may concede that defendant's instruction No. 2, telling the jury that the instrument called a bill of sale is not in effect a bill of sale and does not give plaintiff the "right to reduce the property to his possession," is erroneous as being too broad, since such instrument is valid between the parties, and, had plaintiff reduced the property to his possession before it was levied upon, a different question would be presented. The effect of the instruction, however, is to tell the jury that, as against this defendant, as against the execution creditor, this bill of sale is void, conveys no title, and that plaintiff cannot recover thereunder. This is good law as applied to the facts of this case.
Since the judgment therefore is for the right party, such judgment will be affirmed.
NOTE.
ABSOLUTE BILL OF SALE AS MORTGAGE.
(U.S.D.C.Ark.1907) A bill of sale conveying the grantor's stock of goods, fixtures, storehouse, and lot, as security for money loaned, was, in fact, a chattel mortgage, within Kirby's Dig. Ark. § 5396, declaring that a mortgage shall be a lien only for the time it is filed for record.—In re Reynolds, 153 Fed. 295.
(Ala.1911) In trover for an ice box and other goods sold by bill of sale sufficient to pass title by defendant to R., and by R. to G., and by G. to plaintiff, defendant cannot show that his bill of sale to R. was really a mortgage of which G. had notice, and that defendant had sold the other goods to G. on credit for an amount sufficient to cover defendant's debt to R., as that defense involved varying his bill of sale by parol.—Shriner v. Meyer, 55 South. 156, 171 Ala. 112, Ann. Cas. 1913A, 1103.
(Ala.App.1918) The question of whether a conveyance is a mortgage is one of intention to be decided from a consideration of the whole transaction, and not from any particular feature of it, and the characterization of the transaction by the parties in the instrument itself may be fairly disregarded.—Bank of Mobile v. Lewis, 80 South. 179.
(Cal.1912) In view of Civ. Code, §§ 2888, 2889, a bill of sale absolute on its face, but given with the understanding that the vendee should resell to the vendor on his paying the amount advanced, does not transfer title, though the vendee refused to accept a mortgage. —Fraser v. Sheldon, 128 Pac. 33, 164 Cal. 165.
(Colo.1906) In an action to have a bill of sale declared a mortgage, a recital therein that it is made in consideration of the surrender and cancellation of a note of the person executing the bill of sale is not conclusive that it was not intended as a mortgage.—Gibbons v. Joseph Gibbons Consol. Min. & Mill. Co., 86 Pac. 94, 37 Colo. 96.
(Colo.1916) Allegations of complaint seeking to have bill of sale to defendant adjudged a chattel mortgage and a first lien upon the property described therein for the amount of the defendant's debt evidenced by note and interest held not to state facts sufficient to entitle plaintiff to the relief sought.—Dewey v. Saffer, 155 Pac. 317, 60 Colo. 598.
(Fla.1902) An instruction that if it was verbally agreed between the parties, at the time of the execution of an absolute bill of sale of cattle, that the vendor should be allowed to redeem or have the cattle back on payment of a certain sum of money, the transaction constituted a chattel mortgage only, is properly refused, as the facts thus hypothesized are not inconsistent with an absolute sale, in the absence of an intention that the conveyance should be a security.—Long v. State, 32 South. 870, 44 Fla. 134.
(Fla.1902) In order to render a bill of sale which is absolute on its face a mortgage, it must have been executed with the intention or purpose of operating as a security.—Long v. State, 32 South. 870, 44 Fla. 134.
(Fla.1904) A feature essential to a chattel mortgage is an intent to secure, and the existence of this intent is not implied in a provision that a bill of sale shall be void if the grantor shall pay a certain sum of money by a certain day.—Smith v. Hope, 35 South. 865, 47 Fla. 295.
(Fla.1909) In case of doubt whether the parties to a written instrument intended it to be an absolute bill of sale, conditional sale, or a mortgage, equity will hold the transaction to be a mortgage.—Hull v. Burr, 50 South. 754, 58 Fla. 432, 475.
(Ga.1898) An instrument in the form of a bill of sale, though given for the purpose of securing a debt, passes title when it expressly stipulates that "it puts the title to all of the [described] property" in the creditor, and contains no language giving it the character of a mere mortgage.—Bellerby v. Thomas, 30 S. E. 425, 105 Ga. 477; Thomas v. Bellerby, Id.
(Ga.1904) An absolute bill of sale, intended to secure a debt not exceeding $10th may be foreclosed as provided by Van Epps' Code Supp. § 6631, whether the fact that it is intended as security is shown by a bond to reconvey, or by other appropriate evidence, or not.—Denton Bros. v. Shields, 48 S. E. 423, 120 Ga. 1076.
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