State ex rel. Peters v. Koch

• Decision Date: 31 March 1871
• Citation: 47 Mo. 582
• Parties: THE STATE OF MISSOURI, TO USE OF FRANK PETERS, Appellant, v. LOUIS KOCH et al., Respondents.
• Court: Missouri Supreme Court

47 Mo. 582

THE STATE OF MISSOURI, TO USE OF FRANK PETERS, Appellant,

v.LOUIS KOCH et al., Respondents.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

E. C. Kehr, for appellant.

The sale did not cancel or satisfy the previously existing deed of trust. 1. The bill of sale was not taken or intended as payment or satisfaction of the deed of trust; on the contrary, it was founded on a new and distinct consideration. 2. Eichmann having remained in possession, the sale was void (Wagn. Stat. 281, § 10); whereas the deed of trust, being acknowledged and recorded, was valid by section 8 of the same act. (Howell v. Bell, 29 Mo. 137-8.) 3. The deed of trust did not merge in the bill of sale, because, ( a) To constitute merger there must be a union of two estates in one person. Here the deed of trust put the title in Wagner and the bill of sale in Peters. Under the deed of trust, Peters claimed as cestui que trust; whereas under this bill of sale he holds an estate at law in his own right. ( b) To constitute merger there must be a greater and less estate; here the estates are of equal degree. ( c) The estate created by the bill of sale being void, it could absorb nothing; and hence the basis for a merger was wanting. ( d) Merger is a technical doctrine of the law, applicable alone to real estate, and not to personal property.F. & L. Gottschalk, for respondents.

It appears that plaintiff, Peters, first took a deed of trust from Eichmann, and afterward purchased absolutely the same property from Eichmann. Under such circumstances the deed of trust merged in the sale, and plaintiff could not bring his action on the deed of trust. He left Eichmann in possession of the property after such sale to him, and therefore creditors of Eichmann had a right to attach.

WAGNER, Judge, delivered the opinion of the court.

Eichmann was indebted to Peters in the sum of $170, and, to secure the same, executed a deed of trust on certain furniture in his house. The deed of trust was regularly recorded. Subsequently the respondent Koch sued out an attachment against Eichmann, and caused the property conveyed by the deed of trust to be levied upon and sold. The trustee named in the deed of trust declining to act, Peters filed his claim under the sheriff's and marshal's act, applicable to St. Louis county, and thereupon the sheriff took from the respondents an indemnifying bond conditioned to make good to Peters all damages arising from the levy and sale of the property. This suit was instituted upon the bond so taken. Upon the trial the existence of the debt, and good faith in the execution of the deed of trust securing the same; the insolvency of the debtor; the levy and sale under the attachment of the property covered by the deed, and the value thereof, were clearly proved.

The main defense set up in the answer and relied on was that Peters and Eichmann combined and conspired together to delay, hinder and defraud the creditors of Eichmann, and for that purpose and with that intention Eichmann conveyed and Peters accepted a conveyance of...