Sikes v. Riga

• Citation: 297 S.W. 727,221 Mo.App. 152
• Parties: F. M. SIKES, RESPONDENT, v. E. A. RIGA, DEFENDANT, J. N. CHANEY, CLAIMANT, APPELLANT. [*]
• Decision Date: 13 August 1927
• Court: Court of Appeal of Missouri (US)

297 S.W. 727

221 Mo.App. 152

F. M. SIKES, RESPONDENT, v. E. A. RIGA, DEFENDANT, J. N. CHANEY, CLAIMANT, APPELLANT. ^[*]

Court of Appeals of Missouri

August 13, 1927

Appeal from the Circuit Court of New Madrid County.--Hon. Henry C Riley, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

M. E Montgomery and M. G. Gresham for appellant.

(1) (a) On demurrer to the evidence, the claimant, Chaney's evidence must be taken as true and he is entitled to all favorable inferences that may be drawn therefrom. Thos Cusack Co. v. Lubrite Rfg. Co., 261 S.W. 727; Fisher v. Webb-Knuze Const. Co., 263 S.W. 1022; Baird v. Citizens Ry. Co., 146 Mo. 265, 281; Frost v. Central B. M. Assn., 246 S.W. 628; Van Memelen v. Eads, 244 S.W. 942; Stauffer v. Metropolitan St. Ry., 243 Mo. 305, 316, 147 S.W. 1032; Foy v. United Ry. Co., 226 S.W. 325, 205 Mo.App. 521. (b) And is entitled to have all countervailing inferences favorable to the plaintiff, Sikes, rejected. Troll v. Ehrler Drayage Co., 254 Mo. 332, 337-8, 162 S.W. 185; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Maginnis v. Missouri P. R. R., 268 Mo. 667, 675-6, 187 S.W. 1165; Smallwood v. St. Louis-S. F. R. R., 263 S.W. 550. (2) The sheriff seizing mortgaged property under an execution, is such a disposition as entitles the mortgagee to take possession of the property. Bank of Union v. Keeney, 134 Mo.App. 74, 79; State ex rel. v. White, 70 Mo.App. 1, 6-7; Straud v. Simpson, 74 Mo.App. 230, 233; State to use v. Murphy, 64 Mo.App. 63; Brown v. Hawkins, 54 Mo.App. 75. (3) Where the description in the mortgage is sufficient to enable a third party to identify the property, aided by such inquiry as the mortgage suggests, the mortgage is not void for indefiniteness of description, and sufficiency of description is question of fact for the jury. Cook v. Wheeler, 218 S.W. 929; Estes v. Springer, 47 Mo.App. 99; Holmes v. Commission Co., 81 Mo.App. 97, 100-1; Kibble v. Ragland, 263 S.W. 507; Cass County Bank v. Hulen, 195 S.W. 74; Ranney v. Meisenheimer, 61 Mo.App. 434, 439-440; Evans-Snyder-Buell Co. v. Turner, 143 Mo. 638, 643-4; Bank of Odessa v. Jennings, 18 Mo.App. 651, 657; McNichols v. Fry, 62 Mo.App. 13; Bank of Mendon v. Mell, 185 Mo.App. 510; Bank of Mexico v. Ragsdale, 158 Mo. 668, 680. (4) An insolvent debtor has the right to appropriate his property by any suitable means to the payment of any of his creditors to the exclusion of all the others and even though the creditor preferred is a near relative. Jaffrey v. Matthews, 120 Mo. 317, 329-330; Schroeder v. Bobbitt, 108 Mo. 289; Kingman & Co. v. Cornell et al., 150 Mo. 282, 300-1 and 305; Bangs Milling Co. v. Burns, 152 Mo. 350, 374-6; Mansur-T. Imp. Co. v. Ritchie, 143 Mo. 587; Kuh v. Garvin, 125 Mo. 547, 553-4 and 562; Forrester v. Moore, 77 Mo. 651, 654; Woodson v. Carson, 135 Mo. 521; Stahlhuth v. Nagle, 229 Mo. 570, 582-3; National Bank of Adrian v. Allison, 251 S.W. 475; Meyer Bros. Drug Co. v. White, 165 Mo. 136, 142. (5) (a) It is immaterial whether the claimant Chaney, the mortgagee, had any knowledge whatever of either of the disputed mortgages, or of Riga's intention to execute them, prior to their execution, if he accepted them upon learning of their existence. Ensworth v. King, 50 Mo. 477, 483; Kingman & Co. v. Cornell et al., 150 Mo. 282, 310 and 314; Major v. Hill, 13 Mo. 247, 251; Stahlhuth v. Nagle, 229 Mo. 570, 583-4; Botkin v. McIntyre, 81 Mo. 557, 560. (b) And acceptance is presumed, unless grantee disclaims within a reasonable time after mortgage came to his knowledge. Kingman & Co. v. Cornell et al., 150 Mo. 282, 308 to 315; Fischer Leaf Co. v. Whipple, 51 Mo.App. 181, 184; Fearey v. O'Niell, 149 Mo. 467, 475-7. (6) (a) The mortgages being regular on their face import verity and prima facie import consideration. State ex rel. v. Cryts, 87 Mo.App. 440 449; Deering & Co. v. Collins, 38 Mo.App. 80, 88; Nedvidek v. Meyer, 46 Mo. 600, 602; Shelton v. Railroad, 131 Mo.App. 560, 566; Jackson v. Chicago Ry. Co., 54 Mo.App. 636, 642-3; Strop v. Hughes, 123 Mo.App. 547, 555. (b) Oral evidence may be introduced showing other and additional consideration was given to that recited in the mortgage. Richardson Mach. Co. v. Dix, 245 S.W. 215, 216; Johnson Farming Co. v. Goodwyn, 208 S.W. 110; Jackson v. Chicago Ry. Co., 54 Mo.App. 636, 642-3; Strop v. Hughes, 123 Mo.App. 547, 555-6; O'Day v. Conn, 131 Mo. 321, 327-8. (c) Extension of time of payment of an indebtedness is good consideration for giving security to secure the payment of said indebtedness. White v. Meiderhoff, 281 S.W. 98; Gate City Bank v. Elliott, 181 S.W. 25; Avery Mfg. Co. v. Leathers, 130 Mo.App. 202; Lohrer v. Vogel Real Estate Co., 239 S.W. 1098; Deere v. Marsden, 88 Mo. 512, 514. (d) And extension is good consideration even though for an indefinite time. Powers v. Woolfolk, 132 Mo.App. 354, 360; Mandle v. Horspoll, 201 S.W. 638; Bank of Springfield v. Love, 62 Mo.App. 378. (7) One attacking a conveyance as fraudulent has the burden of proof to show facts invalidating the conveyance. A preferred creditor is under no obligation to show that a preferential conveyance to him is free from fraud. Wall v. Beedy, 161 Mo. 625, 639-640; Mansur-T. Imp. Co. v. Ritchie, 143 Mo. 587, 611-12; Merrill Drug Co. v. Lusk, 73 Mo.App. 571; State ex rel. Robertson v. Hope, 102 Mo. 410, 427-8; Stahlhuth v. Nagle, 229 Mo. 570, 581; Deering & Co. v. Collins, 38 Mo.App. 73, 78; State ex rel. v. Cryts, 87 Mo.App. 440, 449. (8) Though Riga, the debtor, was insolvent and transferred all of his property to Chaney, with the fraudulent intention of beating his other creditors and though Chaney knew all of such facts, still if Chaney acted simply to secure his own indebtedness, and without any purpose to aid Riga's fraudulent purpose, the transaction will be upheld. Alberger v. White, 117 Mo. 347, 363-6; Sexton v. Anderson, 95 Mo. 373, 379-80; Wall v. Beedy, 161 Mo. 625, 637-640; Deering Co. v. Collins, 38 Mo.App. 73, 79; Colbern v. Robinson, 80 Mo. 541, 546-7; Growney v. Lowe, 234 Mo. 689, 696-7; Crothers v. Busch, 153 Mo. 606, 612-113; Gust v. Hoppe, 201 Mo. 293, 300-1.

H. C. Blanton for respondent.

(1) Where no new consideration is received at the time of the execution of a chattel mortgage to secure a pre-existing debt, the mortgage is in valid as to third parties. Dry Goods Co. v. Bank, 81 Mo.App. 281, 282; Hume v. Eagon, 83 Mo.App. 576; Bell v. Bell, 133 Mo.App. 570, 113 S.W. 668; Plow Works v. Ross & Co., 74, Mo.App. 437, 443; Jones Mortgages, page 685, par. 460, page 687, par. 461. (2) Before an extension of time for the payment of a pre-existing debt can constitute a good consideration as to third parties for the execution of a chattel mortgage, the extension of time must be to a fixed, definite, certain date. Jones Mortgages, page 687, par. 461, page 839, par. 532; Smith v. Richardson, 77 Mo.App. 431; Gate City N. Bank v. Elliott, 181 S.W. 25, 28; Cass Co. v. Oldham, 75 Mo. 50; Am. Nat'l, Bank v. Love, 62 Mo.App. 378; Napa Valley Co. v. Rinehart, 42 Mo.App. 171; Ridings v. Hamilton Bank, 219 S.W. 585, 587, 281 Mo. 288; Allen West Co. v. Richter, 228 S.W. 827, 286 Mo. 691; Page on Contracts, par. 2868; Janis v. Roentgen, 59 Mo.App. 76. (3) The description covering the tractor, disc, hay baler, cows and calves is too indefinite and uncertain to pass title even though there were a consideration. Chandler v. West, 37 Mo.App. 631; State v. Norman, 232 S.W. 452; State v. Hunt, 183 S.W. 333; Bozeman v. Fields, 44 Mo.App. 432. (4) The introduction of the chattel mortgages in evidence did not carry with them proof as to their filing even if it was written on the back thereof by the recorder. Comstock v. Kerwin, 57 Nebr. 1, 77 N.W. 387; Levy v. Cunningham, 56 Nebr. 348, 76 N.W. 882; Witt v. Campbell Co., 66 Ore. 144, 134 P. 316; 109 Nebr. 76; 189 N.W. 603; 109 Nebr. 86; 189 N.W. 607; Bank v. Bank, 24 Wyo. 423, 160 P. 1171.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

Action to try the right, title and interest of claimant to certain personal property seized by the sheriff of New Madrid county by virtue of an execution issued to satisfy a judgment of plaintiff against E. A. Riga. The issues were made as provided by sections 1635 and 1636, Revised Statutes 1919, and no question arises on the pleadings. The trial court sustained a demurrer to the evidence and claimant, J. N. Chaney, has appealed from the judgment in favor of plaintiff.

The facts are substantially as follows: Plaintiff was a general creditor of defendant E. A. Riga and obtained a judgment against him in January, 1925. An execution was issued upon said judgment and placed in the hands of the sheriff, who made a levy on the personal property in controversy, July 26, 1925. J. N. Chaney, here inafter referred to as claimant, was the father-in-law of defendant, E. A. Riga, and had signed the latter's notes for sums aggregating $ 1000 or more, which claimant had been compelled to pay. Thereafter, on August 1, 1923, for the purpose of evidencing the indebtedness of defendant to claimant, defendant executed a promissory note for $ 1000 payable on demand to the order of claimant. This note was unsecured and bore no credits. December 1, 1924, defendant executed a chattel mortgage to plaintiff conveying certain personal property described as follows: "One pure bred Boar Barrington Burns Jr., ten brood sows and all increase, fifteen head milk cows, ten head calves, one Fordson tractor, disc and plows, hay baler. All my household and kitchen furniture of all description.

"Property located on the Chaney farm in New Madrid county, Missouri."

The mortgage recites that it was given to secure the note of date, August 1, 1923. Thereafter, on June 22, 1925, defendant Riga executed a chattel mortgage to clai...