Stone v. Al

• Decision Date: 14 June 1886
• Citation: 22 Mo.App. 498
• Court: Missouri Court of Appeals
• Parties: THOMAS F. STONE, ADMINISTRATOR OF RUFUS MAGET, Appellant, v. MARTHA J. FURBER ET. AL., Respondents.

22 Mo.App. 498

THOMAS F. STONE, ADMINISTRATOR OF RUFUS MAGET, Appellant,

v.MARTHA J. FURBER ET. AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 14, 1886.

APPEAL from Platte Circuit Court, HON. GEO. W. DUNN, Judge.

Affirmed.

Statement of case by the court.

This action is explained by the terms of the following petition:

“Plaintiff states that Rufus Maget died in Platte county, Missouri, on the ______ day of ______, 1884; and on the ______ day of July, 1884, plaintiff was appointed his administrator by the probate court of Platte county, Missouri, and duly qualified as such by giving bond, etc., as required by law.

That among the assets of said estate, inventoried to plaintiff as such administrator, was a note of defendants D. K. Furber and to M. J. Furber, for one thousand and eighty dollars, due said estate, dated November 20, 1883, and due in twelve months from date, bearing eight per cent. interest from date.

That on the twenty-third day of December, 1884, said D. K. Furber made, executed, and delivered his certain chattel mortgage, M. J. Fuber, recorded on the same day in the office of the recorder of deeds of Platte county, in chattel mortgage book number sixteen, page four hundred and fifty-seven (a copy of which mortgage is herewith filed), by which he conveyed to said M. J. Furber, among other property, eleven calves and one two year old heifer, for the purpose of securing her as his security on said note, and empowering her, in case of the default of the payment of said note, to sell said above described property at public auction and apply the proceeds to the payment of said note.

That said note is past due, and plaintiff, at the March term, 1885, of the Platte circuit court, obtained judgment thereon, against said D. K. Furber and Martha J. Furber for the sum of one hundred and ninety-five dollars and costs of suit.

That said defendants D. K. Furber and M. J. Furber have wrongfully and fraudulently disposed of said property, above described, to the defendant Haden L. Leavel, in payment of a debt due said Leavel by them, and that no part of the proceeds of said property has been applied to the payment of said note or judgment, and that the said M. J. Furber, on the fourth day of April, 1885, illegally and fraudulently entered satisfaction of said mortgage as to said property.

That D. K. Furber is insolvent.

Plaintiff prays the court to render a decree herein, subrogating him to all the rights and powers of the said M. J. Furber, as the mortgagee in said mortgage, to declare the said M. J. Furber a trustee therein as to the property for the use and benefit of plaintiff, to declare the disposal of said property to said Leavel and the satisfaction of the mortgage therefor as null and void, for the appointment of a receiver to take charge of and sell said property and apply the proceeds thereof to the payment of the judgment of plaintiff as above, and for all such other and further relief as to equity and good conscience may belong.”

The answer was a general denial, and the cause was tried on the following agreed statement of facts, which applied, also, to the suit of Leavel v. R. W. Pack Sheriff, in replevin for the stock taken by Pack, sheriff, under execution issued on the judgment of Stone, Adm'r, v. M. J. and D. K. Furber, both of which cases were tried together:

“On October 14, 1884, D. K., W. A. and M. J. Furber executed and delivered their promissory note to Leavel and Bryant for the sum of $44.80, due one day after date; that, on September 5, 1883, the same parties executed and delivered their promissory note to Leavel and Bryant for the sum of one hundred fifty dollars, due one day after date; that both notes bore ten per cent. interest from date; that, on or about the first day of January, 1885, Leavel and Bryant dissolved the partnership existing between them, and Bryant assigned his interest in the notes to Leavel, the plaintiff; that, on the twenty-third day of March, 1885, Leavel purchased, in good faith, of D. K. and W. A. Furber, the stock in controversy for the sum of two hundred and thirty dollars; that the principal and interest in said notes amounted to two hundred and twenty-one dollars; that the consideration paid by Leavel for said mortgage stock was the two notes at interest, turned over to the Furbers, and nine dollars in cash, making two hundred and thirty dollars; that said sum was a fair consideration for said stock; that the possession of said stock was immediately delivered to Leavel; that M. J. Furber held a mortgage on said stock at the date of the Leavel purchase, and said purchase was with the consent of said M. J. Furber; that Thomas F. Stone is the administrator of Rufus Maget, deceased; that, on November 20, 1883, D. K. Furber executed and delivered to said Maget his promissory note for $1,080.00, ten per cent. interest, due in twelve months; that M. J. Furber was surety on said note; that said note was inventoried and turned over to said administrator; that, on December 23, 1884, D. K. Furber made a chattel mortgage, conveying to M. J. Furber the stock in controversy, to indemnify her as security on said note to Maget; that Leavel knew of the mortgage, but never saw it, or knew what it was given for; that, on or about the twenty-third day of March, 1885, judgment was obtained in the Platte county circuit court on said note for $1,195.00; that D. K., W. A., and M. J. Furber disposed of said mortgaged property to Leavel, in payment of the debts due by all three of the Furbers in the manner before stated; that all of said Furbers were insolvent; that M. J. Furber fraudulently entered satisfaction of the said mortgage, but Leavel was no party to that fraud; he purchased said stock in good faith, for the purpose of collecting honest debts the three Furbers owed him, amounting to two hundred and twenty-one dollars; that, in the month of April or May, 1885, an execution was issued on the Maget judgment, and placed in the hands of Richard W. Pack, sheriff of Platte county, Missouri; that, by authority of said execution, he levied upon said stock and took the same out of the...