State ex rel. McMurray v. Doan

• Decision Date: 31 October 1866
• Citation: 39 Mo. 44
• Parties: STATE TO USE OF WM. A. MCMURRAY, Respondent, v. GEORGE P. DOAN et als., Appellants.
• Court: Missouri Supreme Court

39 Mo. 44

STATE TO USE OF WM. A. MCMURRAY, Respondent,

v.GEORGE P. DOAN et als., Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

This case was tried by the court. The defendant asked certain declarations of law, as follows:

1. Every conveyance, by mortgage or otherwise, of goods and chattels, made with the intent to hinder and delay creditors in the collection and enforcement of their debts by process of law, is fraudulent and void; and any person accepting such conveyance with a knowledge of such intent on the part of the vendors, obtains no valid title, although he may have paid a valuable consideration for such goods. If the court finds from the evidence that Forrester & Bros. were in insolvent circumstances and unable to meet their debts as they matured, and that they applied to Dr. McMurray to obtain assistance from him, and that Dr. McMurray, being aware of their circumstances, purchased the notes read in evidence and took a mortgage on their stock of goods, agreeing to give them as much time as they needed to repay him, and that the object of Forrester & Bros. in making the arrangement was to delay their other creditors for the time being until they could make acceptable terms with them. And if the court also find that Dr. McMurray was aware of their intentions at the time he took the mortgage read in evidence, then the mortgage gave him no title to the goods as against Jeffry & Son, creditors of Forresters, although he may have paid a valuable consideration for the notes and mortgage.

2. The bond signed by the defendant, and read in evidence by the plaintiff, does not estop the defendant from showing that there was in fact no levy made upon the goods under the execution of Jeffry & Son against Forrester & Bros.: nor that the plaintiff McMurray in fact made no claim to the surplus money in the hands of the sheriff after satisfying the Mack execution read in evidence.

3. If the court find from the evidence that there was in fact no levy made by the sheriff upon the goods under the Jeffry execution, and that said goods were seized under execution in favor of said Mack against Forrester before the Jeffry execution came to the sheriff's hands, and that plaintiff made no other or further claim than the above read in evidence by the plaintiff; and that McMurray, the plaintiff, made no claim or demand for the surplus in the hands of the sheriff, then the bond executed by the defendants was unauthorized by any statute, and gives the plaintiff no right of action to the use of William A. McMurray against the defendants in this suit.

The court gave the 1st and 2d instructions, and refused the 3d.

Krum, Decker & Krum, for appellants.

When McMurray filed his claim under the Mack execution and levy (which was on the whole stock), and brought his suit (in the nature of an action of trover or trespass de bonis asportatis) to recover the value of all the goods, and recovered judgment in said suit, he gave up his right of property in the goods levied on, and cannot sue any other subsequent trespasser.

At common law, the owner may pursue his goods, or the proceeds thereof, into whatever hands they may come; the special statute of 1855 does not deprive him of this right. The object of that statute is simply to protect the sheriff where a claim is made, and the statute puts the owner upon an election of remedies, either to sue upon his common law right the taker, or to make claim, and then the statute confines him to an action on the bond--Bradley v. Holloway, 28 Mo. 150. The statute, however, does not change the principles of common law on the subject; the remedies in the statute are cumulative.

It is stated in a work of authority, that, when separate actions have been brought against several defendants for the same single act of trespass, the party last sued may plead the pendency of the first in abatement; and a recovery against one of several parties to a joint tort frequently precludes the plaintiff from proceeding against any other party not included in such aetion--1 Chit. Pl. 79.

In an action for assault and battery, committed by several, a recovery against one may be pleaded in bar to an action for the same battery against another-- Smith v. Laughton, 2 McMul. 184.

A judgment in trespass de bonis asportatis, “not satisfied” is a bar to an action against a co-trespasser--Campbell v. Phelps, 1 Pick. 62; White v. Bullock, 5 Greenl. 147.

By a lawful seizure, a debtor loses his property in the goods--4 Mass. 402..

A judgment in trover or trespass de bonis asportatis for a permanent conversion changes the property--Brown v. Norton, 2 Cro. Jac. 73; Adams v. Broughton, 2 Str. 1078; Bull. N. P. 49; Hoyt v. Brown, 1 Rawle, 121, re-affirmed; Marsh v. Pier, 4 Rawle, 277; Morrell v. Johnson, 1 Hen. & M. 449; Fox v. Northern Liberties, 3 Watts & S. 107; 5 Id. 17; Rogers v. Moore, 1 Rice (S. C.), 60; Carlisle v. Burley, 3 Greenl. 250--and bars plaintiff from asserting his title in any other action.

Execution creditors levying their executions at different times cannot be held as joint trespassers--Brewster v. Gauss, 37 Mo. 518.

In Missouri the exact point appears not to have been directly decided, although it is recognized in Polk's Adm'r v. Allen, 19 Mo. 467.

When a judgment creditor levies his execution upon the money of a debtor in the sheriff's hands, there is no authority for the owner of the money to sue the creditor so levying; and hence there was no warrant for the bond upon which defendants are sued. It may amount to an indemnity to the sheriff upon common law principles; but the plaintiff to whom the bond is not made is not in privity of contract, and cannot sue upon the bond.

The statute of 1855 is special. 1. It relates to execution on personal property only; it does not apply to lands; it does not apply to money seized. 2. It provides that the owner must make a claim when the sheriff levies on property.

Hill & Jewett, for respondent.

Under the 2d instruction asked, the defendants ask the court to assume that the sheriff made no levy under the Doan execution, when the officer testifies distinctly that he did levy the execution in favor of Doan upon the goods, while in his hands, under the Hack levy, and proves his own memorandum made on the execution, the day of the levy, to that effect; that further, an officer who has goods in his hands under an execution cannot levy another upon them.

That a levy was made is clearly proved by the officer, and that the officer who has property in his hands under one execution can levy another execution upon the same property is too simple and every day law and practice to require argument to sustain. State to use of Goldsall v. Watson, 30 Mo. 122, has settled that point.

HOLMES, Judge, delivered the opinion of the court.

An execution was levied upon a stock of goods in a store. The plaintiff claimed to be the owner of them. The goods were seized and removed to the sheriff's warehouse, and the return on the execution shows a levy made on the whole property. At a subsequent day another execution came into the hands of the sheriff against the same defendants, upon which the deputy (as he testifies) made a memorandum in pencil in these words: “Levied this execution July 16th, 1861.” The goods were sold under the levy of the first execution, and, producing more than enough to satisfy that execution, the surplus money was applied in satisfaction of the other, and then the following return was made thereon:--“Amount applied on this writ after paying costs of sale from proceeds of sale, made under execution No. 71, to September term, 1861, $500.88.””” No other goods, chattels or real estate belonging to the within named defendants found in my county whereon to levy and make the balance of the debt or any part thereof.”

The plaintiff made his claim in writing before the sheriff under the first execution according to the statute, and an indemnifying bond was duly executed and delivered to the sheriff by the execution plaintiff. No separate claim was made under the second execution; but the sheriff, before paying over the surplus to the plaintiff in that execution, required them to give another bond in conformity with the statute, as in case of a levy and claim made. This suit is brought upon the bond so given. It appears, also, that a suit had been previously brought to ...