State ex rel. Cochran v. Cooper

• Decision Date: 31 October 1883
• Citation: 79 Mo. 464
• Parties: THE STATE ex rel. COCHRAN v. COOPER et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 464

THE STATE ex rel. COCHRAN

v.COOPER et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Monroe Circuit Court.--HON. JOHN T. REDD, Judge.

REVERSED.

A. J. Herndon, R. C. Clark and Draffen & Williams for appellants.

James H. Robertson, Samuel C. Major and Smith & Krauthoff for respondent.

EWING, C.

This was a suit commenced in Howard county by the respondent against the appellants, and moved to Monroe county by change of venue. The suit was upon the sheriff's bond, and as breaches alleged that certain parties had sued Ritchie & Co. in Howard county by attachment; that writs issued and were served by the sheriff by seizure of certain goods and merchandise, as the property of Ritchie & Co.; that this merchandise did not belong to Ritchie & Co.; that it had been long before conveyed to respondent Cochran by Ritchie & Co. by a deed of trust for the benefit of certain parties named in the deed, who were bona fide creditors of Ritchie & Co., and that that deed was duly recorded. The answer denied the allegations in the petition, and alleged that the deed of trust was made for the purpose of hindering and delaying creditors, and was fraudulent and void as to defendants, who were attaching creditors of Ritchie & Co.

The deed of trust being offered in evidence, was objected to by the defendants, 1st, Because it was void for uncertainty of description, which was as follows: “The stock of merchandise and all other personal property, including scales, etc., now contained in the store-room occupied by said firm of Ritchie & Co. in Fayette, Howard county, Missouri, also one sorrel horse and delivery wagon and set of single harness, listed and invoiced and of the value of $3,113.92, as per schedule made.” 2nd, Because the deed was fraudulent on its face. The deed provided “that with the consent of the grantors and a majority in interest of the beneficiaries, he (the trustee) may make a sale in bulk, if so desired, upon such terms of credit as may be assented to by the grantors and a majority in interest of said creditors.”

1. DEED OF TRUST OF PERSONAL PROPERTY: validity as against creditors.

The deed also provided that the trustee Cochran was to take immediate possession of the stock and proceed to sell the same at private sale, etc. There was some question raised as to whether or not the taking possession by the trustee was sufficient under the deed. This might be a question of importance, if it were not for the fact that the deed of trust was acknowledged and recorded as the law directs, which renders possession unnecessary. Rev. Code 1870, § 2503. The deed requires the trustee to “take immediate possession,” and in such case it is held that such requirement must be complied with, and under the circumstances of this case, and the fact of the recording of the deed, my opinion is that the possession was sufficient. Stern v. Henley, 68 Mo. 262; Wright v. McCormick, 67 Mo. 426; Bishop v. O'Connell, 56 Mo. 186; Lesem v. Herriford, 44 Mo. 323; Claflin v. Rosenberg, 42 Mo. 439. These cases all pass upon the question of possession, but it seems that in none of them did the question of recording a deed, whereby change of possession was made unnecessary, cut any figure. There must be either “an actual and continued change of the possession,” or the conveyance must be by deed duly “executed and acknowledged by the vendee and...