Ross v. Crutsinger

• Decision Date: 30 September 1841
• Citation: 7 Mo. 245
• Parties: ROSS v. CRUTSINGER.
• Court: Missouri Supreme Court

7 Mo. 245

ROSS

v.CRUTSINGER.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

BOWLIN & WOODRUFF, for Appellant. 1st. That the Circuit Court erred in refusing the instructions asked by the defendant's counsel. The three first of which were in substance: That the possession of personal property by the vendor, after the sale, whether absolute or in trust, is frudulent and void in law as against creditors prior or subsequent, and would be subject to execution or attachment, as any other property of the vendor in possession. 6 Mo. R. 575; Rev. Code, 283, Statute of Frauds; 3 Mo. R. 290; 2 Mo. R. 231; 15 Wend. 212; 1 Powell on Mortgages, 36-37; 8 Term. R. 140; 3 Maul. and Selwyn, 374; 3 Price, 6; 9 Johns. 337. 2nd. That the court erred in refusing the fourth instruction, which is, in effect, that the conveyance of chattels and retaining possession in the vendor, without recording the deed or giving notice, is void as against creditors and subsequent purchasers, and if void as against creditors, it is equally void as to purchasers under their executions. Statute of Frauds, p. 283, Rev. Code; 6 Mo. R. 575; 3 Mo. R. 290, and the authorities above quoted. 3rd. That the court erred in its instruction to the jury. It had no application to the case before the court in the proof; it is a mere abstraction, and however good it might be, as an abstract principle of law, it afforded no light to the jury, but served to confuse them. 4th. That the court erred in refusing a new trial, for the verdict was clearly against the evidence, both as it regards the principles involved in the case, and the amount of the damages, being more than double as much as fixed by any witness. See Trime's case, reported in 19 Law Lib. 1; see also authorities above referred to.

J. B. WALKER. for Appellee. 1st. There is a distinction between an absolute and a conditional sale of chattels, as to the vendors retaining possession after sale. The possession by vendors after sale, even in an unconditional sale, is not a fraud per se, but only a badge of fraud, that may be rebutted by evidence that it was a bona fide transaction, and the possession was consistent with the agreement honestly made. Brooks v. Powers, 15 Mass. R. 244; Badlaw v. Tucker, 18 Mass. R. 389. 2nd. The possession by vendor, of personal property, after sale, if it to be a conditional sale or mortgage, is no evidence of fraud, because such possession my be consistent with the trust or mortgage deed, and is not presumed to give a false credit to vendor. And if goods are mortgaged to secure a debt, and there be an agreement that mortgager shall retain possession, a fraudulent sale against creditors cannot be presumed. Badlaw v. Tucker, 18 Mass. R. 389; 2 Kent's Com. 512, 531; Marsh v. Lawrence, 4 Cowen. 461; Burrow v. Paxton, 5 Johns. 258; Beals v. Guernsey, 8 Johns. 446; Craig v. Ward, 9 Johns. 197; Anderson v. Van Allen, 12 Johns, 343; Cole v. Davies, 1 Ld. Raymond. 724, cited in Sturtevant v. Bullard, 9 Johns. 340; and Maggott v. Mills, 1 Ld. Raymond, 286. 3rd. In this case there was no possession after mortgage inconsistent with the deed, and the creditor, Clopper, had notice of the deed of trust before attaching, and the defendant below had notice of the deed before purchasing under the execution in favor of Clopper. The deed of trust then cannot be fraudulent on account of secrecy as to them. 4th. A mortgage of personal chattels, without change of possession, has been held valid: in Maine, 3 Shepley's R. 48 (cited in 46th No. Amer. Jurist, 447); in Massachusetts, 18 Mass. R. 389; in New Hampshire, 5 N. H. R. 545; in New York, 19 Wend. R. 514 (cited in 44th No. Amer. Jurist, 453); also, in case of Hoe & Co. v. Lock (a recent case reported in New York Courier of Jan. 14th, 1841); New Jersey, Halstead's R. 155; North Carolina Badger v. Devereaux, 1 N. C. R. 76, cited in 2 Kent; Virginia, 6 Randolph's R, 82; Tennessee, 3 Yerger's R. 475, 502; Kentucky, 2 Dana's R. 204.

TOMPKINS, J.

Ross was plaintiff below, and having obtained a judgment against Crutsinger, he appealed to this court. On the trial of the cause the plaintiff gave in evidence a deed of trust made by one Hervey to the plaintiff for the benefit of James S. Queissenberry, upon a horse which was the property in question in this suit, and a lot of groceries at a store in the neighborhood, to secure the sum of two hundred and twenty-five dollars, which the maker of the deed admits in his deed to be due to Queissenberry. the one-half on the first day of September, and the other on the first day of January, then next, viz: after the 19th day of May, 1838. The horse was sold on execution, and Crutsinger became the purchaser, with the knowledge of the deed of trust above mentioned. The horse had been purchased by Hervey aforesaid from Queissenberry, and to secure the payment for this horse the deed had been made as aforesaid to the plaintiff, giving him for Queissenberry's use, this lien on the horse and groceries.

The defendant then proved that Hervey for about one year had this horse in his possession next before he was taken into possession by the officer who sold him under process issued by a justice of the peace. The witness stated that Hervey claimed and...