Norris ex rel. Schwartz v. Brunswick

• Decision Date: 31 October 1880
• Parties: NORRIS to the use of SCHWARTZ v. BRUNSWICK et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 256

NORRIS to the use of SCHWARTZ

v.BRUNSWICK et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Knox Circuit Court.--HON. JNO. C. ANDERSON, Judge.

AFFIRMED.

Wilson & Cover and L. H. Waters for appellants.

W. C. Hollister and J. G. Blair for respondents.

HOUGH, J.

Under an execution against Joseph B. Schwartz and in favor of S. Brunswick & Co., the sheriff of Knox county levied on certain billiard tables and fixtures claimed by John G. Schwartz to be his property. Thereupon the plaintiffs in the execution executed to the sheriff a bond of indemnity under the statute, and the sheriff sold the property. This suit was brought by the sheriff, on said bond, to the use of John G. Schwartz, to recover the value of the property sold. The plaintiff recovered judgment. The defendants set up that the tables were sold on credit and the judgment under which the execution issued was rendered for the unpaid purchase money, and that the claim of ownership of John G. Schwartz was based upon a pretended sale of said tables to him by Joseph B. Schwartz, made for the purpose of defrauding his creditors. The judgment under which the execution issued was rendered on the 9th day of December, 1875; and the plaintiff Schwartz claimed to have taken the property in controversy, on the 11th day of December, 1875, at a valuation, in part payment of a debt due him from his son, Joseph B. Schwartz.

1. EXECUTION: no lien on personal property for purchase price thereof.

It is contended by the defendants that under the act of March 31st, 1874, the property was subject to a judgment for the purchase money even though the transfer to the plaintiff was not fraudulent. The act referred to is as follows: “In all cases of the sale of personal property, the same shall be subject to execution against the purchaser on a judgment for the purchase price thereof, and shall in no case be exempt from such judgment and execution for the purchase price, as between the vendor, his assignee, heir or legal representative and purchaser.” This statute did not, in our opinion, give a lien on the thing sold, so as to bind it in the hands of any person to whom it might be transferred, but its only effect was to prevent, the purchaser from claiming such property as exempt from execution. The statute now in force on this subject differs very materially from the act of 1874, and has a much broader scope, and cannot be deemed to be a mere legislative interpretation of the former act. R. S., § 2353. This section declares that personal property sold and not paid for, shall not be exempt from execution under a judgment for the purchase money, except in the hands of an innocent purchaser for value, without notice of the existence of such prior claim for the purchase money. We are of opinion that the act of 1874 gave the judgment creditors in this case no lien upon the property sold for the unpaid purchase money.

2. PRACTICE: production of evidence.

The deposition of John G. Schwartz was taken at Fort Madison, Iowa, and filed in the cause, and said Schwartz being present and examined...