Rice, Stix & Company v. Sally
| Decision Date | 15 June 1903 |
| Citation | 75 S.W. 398,176 Mo. 107 |
| Parties | RICE, STIX & COMPANY, Appellant, v. JAMES B. SALLY; SARAH H. SALLY, Interpleader |
| Court | Missouri Supreme Court |
Appeal from Webster Circuit Court. -- Hon. Argus Cox, Judge.
Reversed and remanded.
Lyon & Swarts, T. M. & C. H. Jones and A. Hollingsworth for appellants.
(1) The instruction offered at the close of the interpleader's case should have been given, because: (a) The right to interplead, under the statute, being in the nature of an action in replevin engrafted upon a suit by attachment, is a suit at law, whereas whatever rights the wife obtained through the note and the chattel mortgage securing it, being without the intervention of a trustee, are enforcible only in equity. Bank v. Tracy, 141 Mo. 252; Withers v Shropshire, 15 Mo. 631; Turner v. Shaw, 96 Mo 22; Crawford v. Whitman, 120 Mo. 144; Pitts v Sheriff, 108 Mo. 110; Leete v. Bank, 141 Mo. 584; Tennison v. Tennison, 46 Mo. 77; McCorkle v. Goldsmith, 60 Mo.App. 475; Loeb v. Manassas, 78 Ala. 555; Campbell v. Galbraeth, 12 Bush (Ky.) 460; Darcey v. Ryan, 44 Conn. 518; Homan v. Headley, 58 N. J. L. 485; Sines v. Rickets, 35 Ind. 181; Conkling v. Dane, 67 Ill. 357; Garwood v. Garwood, 38 A. 954; Dyer v. Bean, 15 Ark. 519; Jenne v. Marble, 37 Mich. 321; Hendricks v. Isaacs, 117 N.Y. 411; Clark v. Patterson, 158 Mass. 388; Knell v. Eggleston, 140 Mass. 202. (b) The chattel mortgage is, in its very terms, fraudulent, within the meaning of section 3397 and 3398, Revised Statutes 1899: First, because the assignment of $ 1,900 in book accounts was to the grantor's use; and, second, because the conveyance by its terms is not reasonably necessary to secure the debt preferred, and necessarily hinders, prevents and delays the lawful action of Sally's creditors for one year, and is a fraud upon their rights. State ex rel. v. Benoist, 37 Mo. 500; Bigelow v. Stringer, 40 Mo. 195; Bank v. Winn, 132 Mo. 88. (2) The chattel mortgage was neither recorded in the county where the mortgagor resides, nor was actual, open and notorious possession taken of the merchandise conveyed, within the meaning of section 5178, Revised Statutes 1899. Claflin v. Rosenberg, 42 Mo. 450; Wright v. McCormick, 67 Mo. 429; Knoop v. Nelson Distilling Co., 26 Mo.App. 156; affirmed in 102 Mo. 156; State ex rel. v. Goetz, 131 Mo. 675; State ex rel. v. Hall, 45 Mo.App. 298; Rivercomb v. Duker, 74 Mo.App. 570. (3) The interpleader, in giving to her husband unlimited control over her property, in permitting him to retain and use it in his business from 1887 to 1897, contracting debts on its credit, with no receipt, memorandum, accounting or conversation about it during all that time, can not absorb her insolvent husband's estate to the exclusion of his creditors. The evidence, too, shows that the interpleader took part in her husband's scheme to hinder, delay or defraud his creditors. Riley v. Vaughan, 116 Mo. 169; Holloway v. Holloway, 103 Mo. 282; Humes v. Scruggs, 94 U.S. 227; Ray v. McPherson, 11 Neb. 197; Briggs v. Mitchell, 60 Barb. 288; In re Jones, 6 Biss. 73; Driggs Bank v. Norwood, 50 Ark. 42; Bucher v. Wilson, 84 Va. 813; Knowlton v. Mish, 17 F. 198. (4) The trial court erred in refusing to reprimand attorneys Harrison and Dugan, who, in making their address to the jury, used language entirely unwarranted by the record, and most prejudicial to the appellants. Smith v. Western Union Tel. Co., 55 Mo.App. 626; Ensar v. Smith, 57 Mo.App. 584; Haynes v. Trenton, 108 Mo. 124.
J. B. Harrison and H. O. Bland for respondent; L. F. Parker of counsel.
(1) Under the statutes of this State, a married woman is, as to property coming to her by devise or inheritance, or as the result of her separate labors, a feme sole, and such property is her sole and separate property. Her estate in such property is a legal estate, and not a mere equitable one. She is legally entitled to its possession, and may enforce such rights in courts of common-law jurisdiction, and is not remitted to courts of chancery, as she would have been prior to the passage of the present enabling statutes of this State. 2 Bishop on Law of Married Women, 364; Bedsworth v. Bowman, 104 Mo. 44; State ex rel. v. Jones, 83 Mo.App. 151; Hopper v. Hopper, 84 Mo.App. 117; Mills v. Wilson, 87 Mo.App. 145; Clawson v. Clawson's Admr., 25 Ind. 229; Stone v. Gazzam, 46 Ala. 269; Beard v. Dedolph, 29 Wisc. 136; Fenelon v. Hogoboom, 31 Wisc. 172; Brown v. Dressler, 125 Mo. 589. It follows as corollary to this proposition that she may enforce her legal rights, in respect of personal property which is her separate estate, by any appropriate procedure, such as replevin, interplea, etc. (2) Under the statutes of this State, a married woman is absolutely entitled, as her sole and separate property, to any money or any other property which shall have come to her by devise or inheritance, or as the result of her separate labor, and, if such money or property comes to the possession of her husband, and is by him converted to his own use, the law implies the same promises on his part, to repay to his wife such money, or the value of such property, as it would imply had he so converted and used the money or property of any other person. She is his creditor to the extent of such money, or the value of such property, and he owes to her the same duty of payment which he owes to any other creditor, and she is, on the other hand, possessed of all the rights of any creditor. In case he finds himself without sufficient means to satisfy all his debts, he has the same right to prefer her that he has to prefer any creditor, and, on the other hand, she has the same right to avail herself of such preference as any other creditor has. Bank v. Winn, 132 Mo. 80; Dice v. Irwin, 110 Ind. 561; Faddis v. Woollomes, 10 Kas. 56; Hill v. Bowman, 35 Mich. 191; Jordan v. White, 38 Mich. 253; Stanley v. Bank, 115 N.Y. 122. (3) At common law a married woman could not be estopped by acts in pais because of her disabilities. The removal of these disabilities has also removed the reason which relieved her at the common-law from the effect of estoppels; but the removal of such disabilities only serves to place her on the same footing as others, standing in the same relation to the subject-matter of the estoppel. As a creditor of her husband, she has the same right to treat him leniently as any other creditor has, and especially is this true where the conversion of her money and property has taken place without her assent in writing, as required by the statute. James v. Groff, 157 Mo. 402; McGuire v. Allen, 108 Mo. 403; Winn v. Riley, 151 Mo. 61; Alkire Grocery Co. v. Ballenger, 137 Mo. 369. (4) The question of delivery of possession, as well as the question of fraud, or an intent to hinder and delay creditors, is one of fact, and the finding of a jury is conclusive. Sharpless v. Derr, 62 Mo.App. 359; Wachtel v. Ewing, 82 Mo.App. 594; Hibbard v. Heckart, 88 Mo.App. 544.
OPINION
In Banc
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, Missouri; 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 & Company 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, twelve or fourteen 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...
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