Miller v. Whitson

• Decision Date: 31 March 1867
• Citation: 40 Mo. 97
• Parties: SAMUEL C. W. MILLER, Defendant in Error, v. JOHN WHITSON AND JAMES B. MAUPIN, Plaintiffs in Error.
• Court: Missouri Supreme Court

40 Mo. 97

SAMUEL C. W. MILLER, Defendant in Error,

v.JOHN WHITSON AND JAMES B. MAUPIN, Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1867.

Error to St. Louis Circuit Court.

Upon the trial of the case, the plaintiff asked the following instructions:

1. After the execution and recording of the mortgage deed from John W. Miller to Samuel C. W. Miller, Samuel C. W. Miller had the right to leave John W. Miller in possession of the property, and such possession by John W. Miller is not of itself evidence of fraud in the execution of the deed of mortgage.

2. If the sheriff of Franklin county, on the day this suit was brought, had the property sued for in his possession, and sold the same under an execution against John W. Miller, and defendant Maupin was present and purchased the property, and it was then present and was claimed by said Maupin at the time of the sale and seizure herein, and it was not in the possession of any other person, then said Maupin had the possession of this property for the purposes of this suit.

3. A person in failing circumstances has the right to prefer and secure one creditor as security over the others, even although such others may not be paid; and if the mortgage read in evidence was made to secure Samuel Miller for liabilities as security for John Miller, and was accepted by Samuel Miller in good faith to secure him, then said mortgage was legal and not fraudulent.

4. It makes no difference what was the intention of John Miller in making said mortgage, if Samuel Miller took and held in good faith to secure him in his liabilities for John Miller; and no fraudulent or improper intention of John Miller not participated in by him can affect his rights under said mortgage.

All of which were given by the court.

Defendants asked the court to give the following instructions:

1. The jury are instructed that unless it appears in evidence that defendants had possession of the property in question at the time the same was taken by the sheriff under the writ of replevin, plaintiff cannot recover.

2. Unless the jury believe from the evidence that at the time of the replevin the defendant Maupin was in possession of the property seized, the plaintiff is not entitled to recover as against Maupin.

3. If the jury find for plaintiff, they can find against one or both of the defendants, as the evidence may warrant.

4. If the jury find for the defendants, they will find also the value of the property in controversy at the time the sheriff took it under the order in this suit, and also the damages, if any, sustained by the defendants, by reason of said property being taken from them, from the time of such taking to this date.

5. If the jury believe from the evidence that the conveyance by John Miller to plaintiff was made for the purpose of defrauding, hindering or delaying his creditors, and if they believe also that plaintiff was conversant with this intention, they will find for defendants.

All of which were given by the court.

Defendants also asked the following additional instructions:

6. The jury, if they find for the defendants, may give such damages as they may think the use of the property is reasonably worth.

7. The jury are instructed that the continued possession of the property after the mortgage was given by John Miller was presumptive evidence of fraud, and becomes conclusive, unless they believe that plaintiff has shown that the mortgage was made in good faith and without fraudulent intent.

8. The insertion of a provision in a deed of trust or mortgage entitling the grantor to remain in possession of the property mortgaged, is fraudulent upon its face and void, and that provision in the contract may be proved if not inserted in the instrument.

9. Unless defendant Maupin had notice of the existence of the mortgage to Miller at or previous to his purchase of the property at the sheriff's sale, his right to the property is not affected by the mortgage.

Which instructions were refused by the court.

The jury found a verdict for the plaintiff.

There were affidavits of newly discovered testimony accompanying the motion for a new trial, but the motion was overruled by the court.

Sharp & Broadhead, for plaintiffs in error.

There seems to be but one question raised by the refusal of the court to give the last four instructions asked by the appellants, and that is as to whether the possession of the property mortgaged by the mortgagor was legitimate and consistent with good faith on the part of the plaintiff. This question has been expressly decided by this court--Howell v. Bell, 29 Mo. 137; R. C. 1855, p. 804, § 8.

The 9th instruction asked by defendants was very properly refused, because, if recorded, the record imparted notice to all the world, by the provisions of the 8th section of the statute above referred to.

Jas. B. Goff, for defendant in error.

FAGG, Judge, delivered the opinion of the court.

The transcript of this record and proceedings in this case are of such a character as not to present very clearly the questions upon which the opinion of the court may be required.

We do not feel authorized to go back of the amended petition filed in the month of May, 1864. Many errors are complained of in the progress of the case up to that time. The defendants, however, filed their answer to this amended petition, and the case was tried upon the issues thus presented. The suit was brought in Franklin county and removed by change of venue to the St. Louis Circuit Court, where there was a trial had which resulted in a verdict and judgment for the plaintiff, to reverse which the defendants have sued out their writ of error.

The plaintiff Miller claimed the property sued for (being altogether personalty) by virtue of a mortgage executed in his favor by John W. Miller.

The defendant Whitson, being an execution creditor of the mortgagor, directed the sheriff of Franklin county to levy upon this property after the date of the filing of the mortgage for record, which was done. The other defendant, Maupin, became the purchaser of the same...