State ex rel. Decker v. D'Oench

• Decision Date: 31 March 1862
• Citation: 31 Mo. 453
• Parties: THE STATE, &C., TO USE OF JOHN DECKER, Respondent, v. WILLIAM D'OENCH et al., Appellants.
• Court: Missouri Supreme Court

31 Mo. 453

THE STATE, &C., TO USE OF JOHN DECKER, Respondent,

v.WILLIAM D'OENCH et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

1. Where a deed of trust conveyed the fixtures and furniture of a store, and also the stock of merchandise, held, that if the merchandise was left in the possession of the grantor with the intent that he should have the power of disposing of the same, that the deed would be void as to such stock. (See State, to use of Voullaire, v. Tasker.)

Appeal from St. Louis Circuit Court.

This was a suit upon an indemnifying bond given to the sheriff to recover the value of property levied upon under execution, &c., and claimed by Decker as trustee in a deed of trust made by the execution debtor.

The defence set up in the answer was, that the deed of trust was made for the purpose of defrauding creditors. The verdict and judgment were for the plaintiff.

Hart & McGibbon, for appellants.

Decker & Voorhis, for respondent.

BATES, Judge, delivered the opinion of the court.

This case was heretofore submitted to the court, and an opinion prepared by Judge Napton in which Judge Ewing concurred, (Judge Scott being absent,) and the parties have agreed that that opinion shall stand as the decision of the court.

In accordance therewith, the judgment below is affirmed, all the judges concurring.

NAPTON, Judge.

The deed of trust, which was the subject of controversy in this case, was not attacked on the ground that it was void upon its face because made to the use of the grantor, nor that the intention of the parties to it was that the grantor should remain in possession and have the power of sale. No such defence was set up in the answer. It was alleged that the deed was fraudulent and void because made for the purpose of defrauding the creditors of the grantor, and this point was submitted to the jury on the evidence, with satisfactory instructions, and found against the defendants.

The deed conveyed a stock of “drugs, medicines, chemiicals, perfumeries, furniture, and fixtures, now in, and which may be hereafter brought into the store which is situate on the corner of Brooklyn and Broadway streets, in St. Louis; and, also, the drugs, medicines, chemicals, perfumery, furniture, and fixtures, this day conveyed by bill of sale from said parties of the third part of said party of the first part, with such other medicines, drugs, chemicals, perfumeries, furniture, and fixtures, as the party of the first part may or shall hereafter put into...