Rice, Stix & Co. v. Sally

• Court: Missouri Supreme Court
• Writing for the Court: Per Curiam
• Citation: Rice, Stix & Co. v. Sally, 176 Mo. 107, 75 S.W. 398 (Mo. 1903)
• Decision Date: 15 June 1903
• Parties: RICE, STIX & CO. v. SALLY et ux.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 398

176 Mo. 107

RICE, STIX & CO. v. SALLY et ux.^*

Supreme Court of Missouri.

June 15, 1903.

HUSBAND AND WIFE — CONTRACTS BETWEEN — MORTGAGE TO WIFE — RECORD — UNRECORDED MORTGAGE — NOTICE — CHANGE OF POSSESSION — IDENTIFICATION OF MORTGAGED PROPERTY — INTERPLEA.

1. An interplea in an attachment suit being in its essential characteristics an action of replevin, the legal title or right to the immediate possession of the property must exist in the interpleader.

2. Rev. St. 1899, § 4335, which gives a married woman the right to contract and carry on business on her own account, and to sue without joining her husband as a party, is broad enough to permit her to contract with her husband, and to have such contract enforced at law.

3. Under the statute a married woman can interplead in an attachment suit against her husband to recover her separate property, whether acquired from third persons or from her husband.

4. The property covered by a mortgage conveying "all the dry goods, groceries, etc., kept in stock at the storehouse and warerooms" of the mortgagor "at L.," was sufficiently identified in an interplea by the mortgagee, in attachment against the mortgagor, by a showing that there was but one store at L., and that the sheriff attached all the goods therein.

5. Under Rev. St. 1899, § 3404, requiring a chattel mortgage to be recorded in the county wherein the grantor resides, the mortgage must be recorded in the mortgagor's county, though the property be in another.

6. In order that notice of a mortgagee's claims to chattels under an unrecorded mortgage shall be imparted to third persons, the transfer of possession to the mortgagee must be so open and notorious as to apprise the community or those accustomed to deal with the mortgagor that the chattels have changed hands.

7. Where, in an attachment suit, in which the wife of defendant claimed the goods in his store under an unrecorded mortgage, the only showing of transfer of possession was that the wife had stayed at the store a short while the day the mortgage was executed, that a red line had been drawn under the previous accounts on the books, that one of the clerks had told inquiring customers that the store was being run in the wife's name, and that a sign with the wife's name on had been seen on the porch one evening, no claim being that it was placed there by the wife's authority, there was no showing of such a transfer of possession as to affect plaintiffs, who attached the goods a few days after the execution of the mortgage, with notice of the wife's claim.

In Banc. Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Two attachment suits by Rice, Stix & Co. against James B. Sally, in which Sarah H. Sally interpleaded, were consolidated. Judgment for the interpleader, and plaintiffs appeal. Reversed.

The following is the opinion of GANTT, J., in Division:

"This is a proceeding wherein the plaintiffs are attaching creditors, and certain goods were attached as the property of defendant James B. Sally, and his wife, Mrs. Sarah H. Sally, interpleads therefor. The action was commenced in the circuit court of Phelps county, and a similar one was begun in Dent county, and the venue in each was changed to Webster county. In the latter county the two suits were consolidated. Mrs. Sally, the wife of the defendant in these attachments, interpleaded for the goods seized by the sheriff, and grounds her claim thereto upon a chattel mortgage executed to her by her husband, of date October 21, 1897, to secure the payment of a promissory note executed on that date by her husband, James B. Sally, in her favor, for $10,500, and payable one year after date. By the terms of said mortgage Mrs. Sally was to take immediate possession of all the stock of goods and personal property therein described, and she was given power to sell at retail or wholesale, and apply the proceeds to the payment of said note, and the balance, if any, to her husband, James B. Sally, or his representatives. James B. Sally, the mortgagor, resided in Phelps county, Mo. The stock of goods was situated at Lecoma, a village in Dent county. The mortgage was not recorded in Phelps county, but was recorded in Dent county, October 22, 1897. On October 25, 1897, the sheriff of Dent county, by virtue of writs of attachment, one of which was issued in the case of Rice, Stix & Co. v. James B. Sally, levied upon and seized the said stock of goods. The said goods were afterwards sold by order of the judge of the circuit court in vacation. The village of Lecoma is in Dent county, 12 or 14 miles from Rolla, in Phelps county. Defendant Sally and his wife, the interpleader, resided in Rolla at the time the chattel mortgage was executed and the writs of attachment were sued out and levied. On a trial before a jury in the circuit court there was a verdict for the interpleader, and the plaintiffs in attachment have appealed to this court.

"The interpleader was Miss Sarah H. Bowman prior to her marriage to defendant Sally, and claims the property to satisfy her mortgage, which she alleges was given to secure an indebtedness to her by her husband, growing out of his receiving and appropriating to his own use her distributive share in the estate of her father, James R. Bowman, who died in 1894, leaving a will, and naming his son, W. P. Bowman, and James B. Sally, defendant, as his executors. To substantiate her claim, and show the consideration of the note described in the chattel mortgage, interpleader introduced in evidence said will. The will, so far as it is material to this controversy, bequeathed certain lands and moneys to Mrs. Sally. She next read, over the objection and exceptions of the attaching plaintiffs, receipts of hers filed with a settlement made in the probate court by said executors, from which it appeared she acknowledged she had received of said executors $6,211.02, and advancements in her father's lifetime amounting to $3,255. Other witnesses testified to admissions made by James B. Sally, the husband of interpleader, over the objections and exceptions of plaintiffs, to the effect that he had received the purchase money for certain lands belonging to his wife, and sold by her and her husband, to the amount of $6,000. Mrs. Sally testified that in truth and in fact she never received any of these moneys from the executors of her husband. Other witnesses, Harrison, Cowan, and Pinto, testified to admissions by James Sally, her husband, that he had received about $6,000, the proceeds of the sale of his wife's realty. Mrs. Sally testified that no account of these moneys was ever kept between her and her husband, and that she never at any time made any demand for it. No interest was paid on it, or requested, and no separate investment of it was ever made for her benefit, and but for her husband's embarrassment she would not have demanded it. She supposed it was all right, and never inquired about it. In April, 1897, the defendant Sally was very slightly indebted to the wholesale trade, and his credit was excellent as reported by commercial agencies; but according to the evidence for interpleader he was indebted to his wife and other relatives to the amount of nearly $20,000. He purchased during 1897 large bills of merchandise, with the result that on October 1, 1897, he was indebted in the sum of $20,000 to the trade. By his chattel mortgage and other dispositions on the 21st of October he had secured his wife and brother-in-law to the full amount of his visible property, and left nothing to satisfy his wholesale creditors for the merchandise bought of them that year. He and his wife had conveyed all his real estate. On October 21, 1897, James B. Sally and Mr. J. B. Harrison, a member of the Rolla bar, went to Lecoma in Dent county, to Sally's store. Mr. Harrison learned that day that Sally was hopelessly involved, and Harrison suggested to him that he should secure his wife the moneys he had received of her estate. Sally and Harrison returned to Rolla that evening, arriving about 9 o'clock at night. Prior to that evening neither Mrs. Sally, the interpleader, or Sally or their attorney, Harrison, had any intimation that Sally's creditors intended to push the collection of their claims. It appears, however, that on the 20th of October, 1897, Sally had an invoice taken of his Lecoma stock. The usual time for taking same had been in March. The interpleader, Sarah H. Sally, had already retired for the night, but at the urgent request of her husband she arose, dressed, and went to the residence of Mr. Harrison. The affairs of Sally were gone over at full length; Mrs. Sally being present during the interview, taking part therein, and fully appreciating all that was being done. The items of the alleged indebtedness, running from 1887 to 1897, were gone over, and David Cowan, circuit clerk and recorder of Phelps county, who was present during this interview, at the request of Attorney Harrison, drew the note and chattel mortgage; the note being made by J. B. Sally to the order of Sarah H. Sally, and for the sum of $10,500, dated October 21, 1897, and being payable one year after date. The note was made payable 12 months after date at Sally's suggestion, as `he thought she could handle the property in a year's time, and not have to close it out.' The chattel mortgage, direct from J. B. Sally to Sarah H. Sally, without the intervention of a trustee, conveyed such goods, wares, and merchandise as were covered by the specific items of an invoice, dated October 20, 1897, and the office fixtures in the Lecoma store, aggregating about $9,000, and gave Mrs. Sally the right to sell at retail, wholesale, or in any other manner, without notice or publication of any kind of the time and place of sale, all of the said merchandise, and to apply the proceeds toward the payment of her debt; the balance to be returned to James B. Sally, or his legal representatives. The mortgage in terms...