Rainwater-Boogher Hat Co. v. Malcolm

• Decision Date: 09 August 1892
• Docket Number: 111.
• Citation: 51 F. 734
• Parties: RAINWATER-BOOGHER HAT CO. v. MALCOLM et al., (WAPLES, Intervener.)
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 734

RAINWATER-BOOGHER HAT CO. v. MALCOLM et al., (WAPLES, Intervener.)

No. 111.

United States Court of Appeals, Eighth Circuit.

August 9, 1892

Statement by CALDWELL, Circuit Judge:

On the 19th day of January, 1891, John Malcolm made and delivered to Paul Waples, the trustee therein named, the following instrument:

'DURANT INDIAN TERRITORY.

'Know all men, that I, John Malcolm, a merchant and doing business at Durant, Indian Territory, in consideration of one dollar to me in hand paid, have this day and by these presents do bargain, sell, and deliver to Paul Waples, of Denison, the following described personal property, to wit (Here follows a description of the property, which consisted chiefly of a stock of goods.) The condition of this conveyance is such, however, that whereas, I am indebted to the Leeper Hardware Company $2,552.23, and to Waples, Platter & Co. two notes aggregating $745.00, not including interest or attorney's fees, and to Waterman, Star & Co. $224.95, and to Burton, Lingo & Co. $184.00, and to John R. Carr estate $142.90, and to various other parties named in Schedules A and B, hereto annexed and made a part hereof, in the sums set opposite their respective names: Now, if, at any time within sixty days from this date, I pay off and discharge all of the indebtedness described aforesaid, including interest, then this conveyance shall be null and void, and of no further force or effect, and said goods, merchandise, and property shall be restored to me. But if I fail to pay all of said indebtedness, with accrued interest, if any, within the sixty days aforesaid, then said Paul Waples, or his successor, shall have the right and it shall be his duty, at the expiration of said sixty days, after first advertising the time, terms, and place of sale for ten days previous to the day of sale in the Denison Daily Herald, to sell all of the aforesaid property then on hand in the front of said storehouse to the highest bidder at public outcry for cash. Pending said sale said Paul Waples shall take exclusive possession of all the aforesaid property in person or by his agents or employes, and the merchandise he shall have the right to sell in due course of business for cash only, it appearing to me that such sales would operate to the benefit of all concerned. The sums of money realized from the sales of aforesaid property, or any portion thereof, whether at public sale or private sale in due course of business pending the public sale, and all such as may be realized at public sale, shall be appropriated as follows: First. Towards the payment of the reasonable expenses of executing this trust, including reasonable compensation to such agents and servants as it may be necessary for said Paul Waples to employ, and reasonable compensation for his own services, not exceeding $75.00 per month and board; but it is distinctly understood that whatever attention I give to the property herein conveyed, or whatever assistance I may render the said Paul Waples, shall be voluntary on my part, and for which I am to receive nothing. Second. To the payment of the claim of said Leeper Hardware Co., Waples, Platter & Co., Lingo, Waples & Co., Waterman, Star & Co., Burton, Lingo & Co., John R. Carr estate in full, including interest. If not enough for that purpose, the same shall be prorated between them. Third. To the payment of the creditors named in Schedule A in full. If not enough for that purpose, the balance shall be prorated between them. Fourth. To the payment of creditors named in Schedule B in full; and, if not enough for that purpose, the balance shall be prorated between them. Fifth. The balance, if any, shall be paid to me. Witness my hand this the nineteenth day of January, 1891.

(Signed)

'JOHN MALCOLM.'

On the day the instrument was executed, Waples, the trustee, took actual and exclusive possession of the personal property therein described, which he retained until the same was taken from him in the manner now to be stated. Two days after the execution of this instrument and the delivery of the property to the trustee, the plaintiff in error, Rainwater-Boogher Hat Company, brought suit by attachment in the United States court in the Indian Territory against John Malcolm, the grantor in said instrument, for $295.75, and caused the marshal to levy the writ of attachment on the personal property so conveyed by Malcolm to Waples. The latter intervened in the suit, and claimed the property as trustee under said instrument. The trial court held that the instrument on its face was a deed of trust in the nature of a mortgage, and so instructed the jury.

The court, at the request of the plaintiff in error, instructed the jury--

'That where an insolvent debtor executes one or more instruments by whatsoever name or form, with the intent that they shall operate as a security to his creditor or creditors, thus giving time to enable him to raise funds to meet his debts, then such instrument or instruments constitute a mortgage; but if the debtor executes one or more instruments, by whatsoever name or form, with the intention, expressed or implied, that the same shall operate as an absolute conveyance of the property to the grantee, to enable him to raise a fund to pay the debts of the grantor, then such instrument or instruments constitute an assignment. The test is this: If the debtor retains title to his property, and the same is delivered actually or conditionally to the grantee merely as a security for his debt pending a day to be fixed by the instrument, within which time the debtor may pay the debt...