State ex rel. Heed v. King

• Citation: 44 Mo. 238
• Parties: STATE, TO THE USE OF THOMAS D. HEED, Respondent, v. HENRY C. KING et al., Appellants.
• Decision Date: 31 March 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 238

STATE, TO THE USE OF THOMAS D. HEED, Respondent,

v.HENRY C. KING et al., Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Dryden, Lindley & Dryden, for appellants, relied on Gen. Stat. 1865, p. 44, § 10; Claflin et al. v. Rounburg, 42 Mo. 439; Hamilton v. Russell, 1 Cr. 309; Gen. Stat. 1865, ch. 150, § 15, and ch. 161, § 3; Sess. Acts 1855, p. 464.

Coonley & Madill, for respondent.

BLISS, Judge, delivered the opinion o the court.

This suit was brought upon a bond given by the defendants, as attaching creditors of one Pierce, upon property claimed by T. D. Heed under the provisions of “an act concerning the duties of sheriff and marshal, in the county of St. Louis, in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons,” approved March 3, 1855 (Sess. Acts 1855, p. 464). Pierce was about to remove to the State of Louisiana, and on the 8th day of April, 1868, sold his household furniture to Heed for $2,000, he agreeing to pay $1,000 down, and give his note for the balance. He paid Pierce $100 down, and took the bill of the furniture, and the next morning paid $900, and gave his note. It was a part of the agreement that the furniture should remain in the house until it could be sold, as Heed bought it on speculation. On the afternoon of the 9th, the property was attached and the bond given. Judgment was obtained in the Circuit Court for the value of the property, and the judgment was affirmed at general term.

The principal questions involved in the appeal arise from the instructions to the jury given and refused. The following were given by the court, on its own motion, and excepted to by the defendants: “The jury are instructed that if the said Pierce did sell the property in question with intent to hinder, delay, or defraud his creditors, said Heed could not be prejudiced thereby unless he had, at or previous to the sale, knowledge of such intent or such information as to put a man of ordinary prudence upon inquiry in regard to it.” “If the jury believe from the evidence that the said Thomas D. Heed purchased the property in question, but that he did not within a reasonable time take possession thereof, regard being had to the situation of the property, then the jury will find for the defendant.” “If the jury believe from the evidence that said Thomas D. Heed purchased the property in question in good faith, for a valuable consideration, with a view to take possession thereof as soon as practicable, regard being had to the situation of the property, but, before he had had an opportunity to take possession thereof, the same was levied on and taken away, then the jury will find for the plaintiff, and assess the damages at the value of the property--not, however, to exceed the sum of four thousand dollars, together with interest from May 14, 1868, at the rate of six per cent. per annum.”

From an examination of the evidence, as spread out in the bill of exceptions, I am satisfied that these instructions contain a correct statement of the law as applied to it. Special objection is taken to the phrase “with a view to take possession thereof as soon as practicable, regard being had to the situation of the property, but, before he had an opportunity,” etc., as not being founded upon evidence, and containing a suggestion to the jury calculated to mislead. It was clearly established and uncontradicted that the purchaser of the furniture was to have the use of the house for ten days, for the purpose of selling it at auction or otherwise; that the seller was expecting to leave in a day or two, giving him sole possession of the house and furniture; and that the very day the bargain was consummated, by the payment of the $1,000, the goods were attached. This testimony fully warranted the instruction complained of. There is nothing technical or unnatural in the provision of the statute requiring sales of personal property to be “accompanied by delivery in a reasonable time, regard being had to the situation of the property.” Like all other legal requirements, it is to be interpreted by the rules of common sense. What would be a reasonable time under some circumstances would not be under others. Regard must necessarily be “had to the situation of the property,” whether required in the statute or not. If one purchased a stack of hay in a field, he could not be required to remove it at once. It must be delivered to him; but if left in the field for a short time, it would not furnish such a presumption of non-delivery as if the vendor were permitted to retain possession of a horse or a watch. So, if a tenant was about to leave a dwelling which was rented to another, who was to take possession on his leaving, it would be natural for the incoming tenant, if he desired to purchase articles peculiarly fitted for the house, to do so before it was vacated, and stipulate that they were to be left by the outgoing tenant. In deciding what would be a ““reasonable time”...