Thompson v. Foerstel

• Decision Date: 03 May 1881
• Parties: WILLIAM B. THOMPSON, Respondent, v. MICHAEL FOERSTEL, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 290

WILLIAM B. THOMPSON, Respondent,

v.MICHAEL FOERSTEL, Appellant.

St. Louis Court of Appeals, Missouri.

May 3, 1881.

1. A deed of trust which does not, in express terms nor by necessary implication, reserve to the grantor the power of disposition of the property conveyed, but which prohibits him from conveying without the express consent of the beneficiary, is not fraudulent as against creditors as being a conveyance to the use of the grantor, although, by the provisions of the deed, he is permitted to retain possession.

2. That the grantor subsequently sells the property thus conveyed, and appropriates the proceeds, is not competent, as evidence of the intention of the parties to the deed, in the absence of any evidence of the grantee's consent to such sale.

3. Where a deed of trust conveys after-acquired property, and the trustee has taken possession thereof, he can, when deprived of such possession, maintain replevin therefor.

4. Where in such a case the trustee places a watchman in charge of the property conveyed, and notifies the grantor that he has taken possession under the provisions of the deed, this is sufficient to give him possession.

5. A deed conveying such property as “shall be bought” by the grantor, or “by him substituted for the property hereby conveyed, out of the proceeds of the sale of the property conveyed,” covers property otherwise substituted for the property conveyed as well as that purchased with the proceeds of a sale of property conveyed.

6. Where the deed provides that, in the absence of the trustee the sheriff of the county shall execute the trust, and, owing to the erection of a separate subdivision of the State, the situs of the property is thrown without the county, in the absence of the trustee, the Circuit Court having jurisdiction of the situs of the property may appoint a trustee upon the ex parte application therefor.

7. Where the judgment is clearly for the right party, an appellate court will not minutely examine into the propriety of the intermediate steps leading up to the judgment.

8. An objection that the judgment is slightly in excess of the verdict, is not ground for a reversal unless made before the trial court, where the substantial rights of the parties are not affected thereby.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

E. W. PATTISON and T. H. PEABODY, for the appellant: The deed of trust under which plaintiff claims is void under the first section of the chapter on Fraudulent Conveyances.--Rev. Stats., sect. 2496. This is settled by the following Missouri cases: Walter v. Wimer, 24 Mo. 63; Stanley v. Bunce, 27 Mo. 269; Billingsley v. Bunce, 28 Mo. 547; Cator v. Collins, 2 Mo. App. 234; The State v. Tasker, 31 Mo. 445; Lodge v. Samuels, 50 Mo. 204; Brooks v. Wimer, 20 Mo. 503; White v. Graves, 68 Mo. 218. The fact that the sales were to be made only with the consent of the mortgagee does not distinguish this case from those above cited. This point is expressly decided in Bigelow v. Stringer, 40 Mo. 195, 208. Where the conveyance is absolute if “the grantor remains in possession in such a way as to be able to use the goods as his own, it is always void as against creditors, even though made on a valuable consideration.”--May's Fr. Conv. 100; City Bank v. Westbury, 16 Hun, 458; Insurance Co. v. Wilcoxson, 21 Ind. 355; Robbins v. Parker, 3 Metc. 117; Truitt v. Caldwell, 3 Minn. 364; Banning v. Sibley, 3 Minn. 389; Chophard v. Bayard, 4 Minn. 533; McCulloch v. Hutchinson, 7 Watts, 434; Hart v. McFarland, 13 Pa. St. 182; Place v. Langworthy, 13 Wis. 629. The facts that the mortgageor was left in possession and was permitted to sell the goods, may be shown for the purpose of invalidating the mortgage.-- Metzner v. Graham, 57 Mo. 404; The State v. Jacob, 2 Mo. App. 183; Weber v. Armstrong, 70 Mo. 217; Reed v. Pelletier, 38 Mo. 176; Williston v. Jones, 6 Duer, 504; Robbins v. Parker, 3 Metc. 117; Doyle v. Smith, 1 Coldw. 15. The possession of the mortgage must be actual. The possession of the respondent in this case is insufficient.-- In re Blenkhorn, 9 Ch. App. 697; Congreve v. Evetts, 10 Exch. 298; Hope v. Haydey, 5 El. & Bl. 830; Gale v. Burnell, 7 Ad. & E. 850. A mortgage cannot be made to cover after-acquired chattels.-- Wright v. Bircher, 5 Mo. App. 322. That the after-acquired property must be clearly embraced in the deed, is held in Tapfield v. Hillman, 6 Man. & G. 245; Brainerd v. Peck, 34 Vt. 496. And the language of the deed alone is to determine what property passed.-- Farmers' Loan Co. v. Commercial Bank, 15 Wis. 424.

W. B. THOMPSON, pro se: The mortgage of August 1, 1874, was upon a dairy and its property then in existence, and what would reasonably come into existence connected with and necessary for its use, and, therefore, covered and became a lien upon the cows in question, even if it were true that they were not in existence when the mortgage was executed.--Jones on Mort. (2d ed.), sect. 152; Brett v. Carter, 3 Cent. L. J. 286; Wright v. Bircher, 5 Mo. App. 323; Johnson v. Morrow, 60 Mo. 339; Sillers v Lester, 48 Miss. 613. The estoppel against Waeckerle is clear and conclusive, and lies in the act committed by him to induce the plaintiffs to believe that the cattle were the same covered by the deed of trust; in pointing out the cattle as the same, and in acquiescing in the plaintiffs taking possession, and placing a watchman in charge; in leaving the cattle in the possession of the plaintiff after the deed of trust of April 25, 1879, to defendant, was executed. Any estoppel against Waeckerle is an estoppel against the defendant.-- Chouteau v. Goddin, 39 Mo. 250; Garnhardt v. Finney, 40 Mo. 449; Newman v. Hook, 37 Mo. 207; McDermott v. Barnum, 19 Mo. 204; Taylor v. Saugrain, 1 Mo. App. 312; Bales v. Perry, 51 Mo. 149; Slagel v. Murdock, 65 Mo. 522; Pelkinton v. National Ins. Co., 55 Mo. 172; Union Saving Assn. v. Kehlor, 7 Mo. App. 158.

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

The record in this case is somewhat long, but the ultimate facts upon which the rights of the parties depend are few, and, as we understand it, not in dispute. It appears that on August 1, 1874, William Waeckerle executed to Louis Phillippi a deed of trust to secure certain notes made by him to Joseph Uhrig & Co. The notes secured by the deed were for various amounts, maturing at various times between six months and five years from the date of the deed. The property embraced in the deed consisted of sixty-five cows and certain horses, wagons, and other personal effects, belonging to a dairy, which was then owned and carried on by Waeckerle, at Rock Springs, in St. Louis County. The deed not only embraced, by enumeration or general description, all the personal property then belonging to the debtor, but it undertook to convey, “also, all the cows, horses, hogs, wagons, harness, utensils, and personal effects and chattels which, during the existence of any portion of the indebtedness” mentioned in the deed, “should be bought by the said first party, or substituted by him for the personal property” conveyed by the deed, “out of the proceeds of the personal property” conveyed by the deed, “consent to said sale to be, however, obtained as hereinafter mentioned.” The deed also contained a covenant that the party of the first part “will not sell, assign, or dispose of any of said property without the consent of said party of the third part, and that he will not suffer or permit said property, or any part thereof, to be levied upon, seized, or taken away under any legal process whatsoever, and that he will not suffer or allow said property, or any part thereof, to be wasted, and will not commit any acts concerning such property, whereby the security intended hereby to be given is diminished.” The deed also provided that upon the keeping of these covenants and the payment of the notes at maturity, the deed should be void, but that on a breach of any of them the notes should become due and payable, and that payment thereof might be enforced by the trustee taking possession of and selling the property, in a manner therein prescribed.

The deed also contained the following provisions with reference to the substitution of a trustee: “The party of the second part, or, in case of his death, sickness, absence from the city of St. Louis, refusal, or other disability to act, the sheriff of St. Louis County for the time being, may enter any place where said property, or any part thereof, may be found, or is situated, take possession thereof, and remove the same to any place he sees fit and proper, and may proceed to sell said property,” etc., to satisfy the debts secured by the deed.

After the making of the deed, in pursuance of the Scheme for the separation of St. Louis County from the city of St. Louis, the county of St. Louis became an independent subdivision of the State, not embracing any part of the city of St. Louis, and the boundaries of the city of St. Louis were so enlarged as to embrace Rock Springs and the site of the dairy in question. On April 23, 1879, after this separation of the city of St. Louis from St. Louis County, the Circuit Court of St. Louis City, upon a showing that Louis Phillippi, the trustee in the deed, was absent from the city of St. Louis and had become a non-resident of the city and State, and that the property was within the limits of the city of St. Louis, and no longer in the county of St. Louis, “which fact,” the order of the court recited, “would render the execution of said trust impossible by the sheriff of the county of St. Louis,” appointed William B. Thompson, the plaintiff in this action, as trustee in the place of Phillippi.

The next day, April 24, 1879, Thompson notified Waeckerle of his appointment as trustee, and demanded payment of the debt of him, or else possession of the cows mentioned in the deed. Waeckerle pointed out to him thirty-two cows, which are the subject of this controversy, in a pasture,...