State ex rel. Roeckel v. Jacob

• Decision Date: 16 May 1876
• Citation: 2 Mo.App. 183
• Parties: STATE OF MISSOURI, to use of GUSTAVE ROECKEL, Respondent, v. ROBERT JACOB, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 183

STATE OF MISSOURI, to use of GUSTAVE ROECKEL, Respondent,

v.ROBERT JACOB, Appellant.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. A conveyance which is not invalid on account of fraudulent intent of the parties to hinder or delay creditors, may yet be so because made to the use of the grantor. Hence, it is error to instruct a jury that, if no such fraudulent intent exist, a deed is not void, as being made to the use of the grantor.

2. A parol agreement between the parties, contemporaneous with the execution of a trust deed or mortgage of merchandise, that the grantor may retain the stock and continue to sell in the course of trade, will vitiate the deed, as being made to the use of the grantor, with like effect as if such agreement appeared on the face of the instrument.

3. A suit on account of the taking of personal property held under a deed of trust is rightly brought in the name of the trustee.

4. The better method of proving the value of personal property is by the statements of competent witnesses who can tell what it ought to bring in the market. But, if such testimony be not at hand, proof of a public sale of the property, actually made under legal procedure, may be admitted for the purpose.

5. The court cannot declare in an instruction what articles were sold, or not sold, at a public sale.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Jecko & Hospes, for appellant, cited: Laws App. (1872), 560; Peters v. Koch, 47 Mo. 582; Potter v. McDowell, 31 Mo. 62; Billingsby v. Bunce, 28 Mo. 547; Hall v. Webb, 28 Mo. 408; Reed v. Pelletier, 28 Mo. 173; State to use v. Tasker, 31 Mo. 445; State to use v. D'Oench, 31 Mo. 454; Denny v. White, 10 Mo. 354; Greeley v. McNabb, 13 Mo. 596; Hofelman v. Valentine, 16 Mo. 393; Hasse v. Semp, 26 Mo. 394.

Gottschalk, for respondent, cited: Wag. Stat. 1000, sec. 3; Gibbons v. Gentry, 20 Mo. 468; Vorhis v. Langsdorf, 31 Mo. 451; State ex rel. v. Tasker, 31 Mo. 445.

LEWIS, J., delivered the opinion of the court.

Plaintiff's usee was trustee in a deed of trust executed by one Bechtold, to secure certain promissory notes in favor of Joseph Schnaider, amounting to $700, for money borrowed in the same transaction. The deed covered a leasehold, together with the fixtures, furniture, and stock in trade of a dram-shop and beer saloon. Defendant Jacob was a member of the firm of Samuel Wainwright & Co., who, having obtained four judgments against Bechtold before a justice of the peace, caused executions to be levied on much of the personal property included in the deed of trust. Plaintiff's usee made claim under the statute, and defendants gave the proper bond, upon which, after sale of the property, this suit was brought. The verdict and judgment were for the plaintiff.

The property covered by both the deed and the levy consisted of tables, chairs, stoves, glasses, a clock, and a lot of wines and liquors. It appeared from the testimony of both the trustee and the cestui que trust that it was understood and agreed between the parties, when the deed was executed, that Bechtold should retain possession of the property and carry on his business as before, keeping the proceeds of his sales without any accounting therefor. One of the instructions given for plaintiff was as follows:

“The court instructs the jury that although they may believe that Bechtold executed the deed of trust with the intention to hinder, delay, or defraud his creditors, yet, if they also believe that Joseph Schnaider was not aware of such intention on the part of said Bechtold, at the time he took said deed, but that he, said Schnaider, took said deed of trust for the purpose and with the sole intention of securing himself for money loaned to said Bechtold, then the jury cannot find said deed fraudulent or void on the ground of fraudulent intention, or as being made to the use of said Bechtold.”

So far as this instruction treated of the intentions of the parties, respectively, with their legal bearings upon the question of fraud in fact, it was free from objection. But the addition, “or as being made to the use of said Bechtold,” had a direct tendency to mislead the jury. The invalidity of a deed on account of the intention to hinder, delay, or defraud creditors is one thing; its invalidity because of being made to the use of the grantor is another and a different thing. The instrument, so far as the first mentioned cause is concerned, may be absolutely free from taint; and...