Stone v. Spencer

• Decision Date: 30 April 1883
• Citation: 77 Mo. 356
• Parties: STONE et al., Appellants, v. SPENCER.
• Court: Missouri Supreme Court

77 Mo. 356

STONE et al., Appellants,

v.SPENCER.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

R. S. Musser for appellants.

Judson & Motter for respondent.

HENRY, J.

Plaintiffs, husband and wife, sued Spencer in the circuit court of Buchanan county for the recovery of the following specific personal property, viz: one cream-colored mare, one top side-spring buggy and one set of harness. The defendant's answer was a denial that plaintiffs owned or were entitled to the possession of the property, and on a trial he obtained a judgment, from which plaintiffs have appealed

Tele Stone, the wife, testified that she purchased the property from Isaac Samuels at her husband's store in St. Joseph on Saturday afternoon, September 14th, 1878, and paid the purchase money and received his bill of sale for the property the same afternoon; that the price paid was $350, and that the property was worth that sum; that she did not make the purchase with the intent to aid Samuels in defrauding his creditors; that the purchase was made in the store, and that he went back to the desk, where her husband was, to get his money; that she did not see it paid; that on Monday morning, September 16th, she and Samuels went to the livery stable where Samuels kept the mare to get her, but the proprietor was absent, and that she returned again alone about nine o'clock a. m. and saw one Fleming, who was managing the stable, showed him her bill of sale, and told him she wanted to take the mare to another stable, but finally agreed with him on terms for boarding the mare, and left the mare, harness and buggy. Plaintiffs also offered in evidence the proceedings in an attachment suit wherein A. Walter & Co. were plaintiffs, and Samuels was defendant, and the levy made by the sheriff of said county, defendant herein, on said property, at five o'clock p. m. on the 16th day of September, 1878. Fleming testified to the same facts stated by Mrs. Stone in relation to her visit to the stable and what occurred between them.

Defendant introduced Winslow Judson, who testified that on the day the attachment was levied Samuels came to his office to see about the claim of A. Walter & Co., which he had for collection; said he was unable to pay, was going west, and asked witness if he should make a bill of sale of his horse and buggy to some friend if his creditors could then touch them. Witness told him he had no right to ask him that question; that he should consult his attorney; that he knew he had a claim against him for collection. That, within two hours after this conversation witness inquired of the foreman in charge of the stable where the mare was kept, and was told by him that she was still there in Samuels' name. Spencer testified that he had other attachments against Samuels, under which he had attached all his stock in trade in his jewelry store, in St. Joseph, on the 16th day of September, at 2:20 o'clock p. m.; that Samuels was insolvent.

The cause was tried by the court without the intervention of a jury.

Plaintiffs asked the following instructions, which were given:

1. A sale of property made on Saturday, the seventh day of the week, by and between Jews adherent to the Jewish religion, is not in violation of the laws of the State of Missouri, and is not, therefore, null and void.

2. There can be no fraud committed by a debtor as against his creditors in the disposition of property not subject to execution and attachment.

4. A sale made by a vendor of goods and chattels in his possession or under his control, and where the same is accompanied by delivery in a reasonable time, regard being had to the situation of the property, and followed by actual and continued change of possession of the property sold, is valid as against the creditors of the vendor.

5. If the court, sitting as a jury, believe from the evidence that the taking possession of the property in controversy by the female plaintiff was open, notorious and unequivocal, such as to apprise the community and parties in charge of the property that the property had changed hands, and that the title had passed out of the seller into the purchaser, plaintiffs are allowed to recover judgment.

The following asked by the plaintiffs were refused:

3. A party attacking a sale for fraud as against creditors must show that the property sold and attached as the property of the debtor (the vendor) was properly subject to execution and attachment, and also that the grounds set forth in the affidavit for attachment are true.

6. Under the pleadings and evidence plaintiffs are entitled to recover.

The following declaration of law was made by the court at defendant's request: The court sitting as a jury declares the law to be, that defendant, upon the pleadings and evidence herein, is entitled to recover from plaintiffs and their sureties, upon their bond given herein under the provisions of section 3, chapter 166 of the General Statutes of Missouri, the value of the property taken out of his possession herein, with his damages and costs in this behalf sustained.

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