Turner v. Drees Hardware & Furniture Co.
| Decision Date | 14 February 1921 |
| Parties | CARRIE BACON TURNER, Appellant, v. DREES HARDWARE & FURNITURE COMPANY, a Corporation, Defendant; R. I. COPE, Interpleader, Respondent |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from Butler County Circuit Court.--Hon. Almon Ing, Judge.
REVERSED.
Judgment reversed.
Sam M Phillips for appellant.
(1) The deed of trust from Drees Hardware & Furniture Company to interpleader R. I. Cope, was fraudulent and void because said Company did not comply with the terms of the "Bulk Sales Law" in making said deed. See Laws of Missouri, 1913, page 163, 164, 165. (2) The Bulk Sales Law applies to deeds in the nature of an assignment for the benefit of creditors. The statute provides that its terms shall apply to: "The sale, trade or other disposition of the major part in value, or the whole of a stock of merchandise, etc." The words "or other disposition" following the words "sale and trade" will include a deed in the nature of an assignment. The term "disposition" as used in the statute, of course, means to "dispose of." The term "dispose of" includes the assigning of property to a use. Pearce v. Hawkins, 62 Texas 434, 437; 18 Corpus Juris, 1280; Webster's Int. Dictionary; Koerner v. Wilkerson, 96 Mo.App. 517; Swensen v. Klenschmidt, 10 Mont. 473, 482, 26 P. 198. (3) The words "sold and disposed of" mean more than sold. It includes also mortgage. Platt v. Railway, 99 U.S. 48, 67, 25 L.Ed. 424; Rutherford, etc. v. Samtrock, 60 N.J.Eq. 471, 473; Gordon v. Preston, 1 Watts (Pa.) 385, 386; Lancaster v. Doley, 1 Rawle, (Pa.) 251. The word "dispose of" means pass over into the control of another. Koerner v. Wilkerson, 96 Mo.App. 517. It means to alienate. 18 Corpus Juris, 1280; Abbott L. D. (Quot.) Pearre v. Hawkins, 62 Tex. 434, 437; Webster Int. D. (Quot.) Illinois L. Ins. Co. v. Beifield, 184 Ill.App. 582, 594; Ironside v. Ironside, 150 Iowa 628, 632, 130 N.W. 414; Koerner v. Wilkinson, 96 Mo.App. 510, 517, 70 S.W. 509; Neilson v. Alberty, 36 Okl. 490, 496, 129 P. 847; Waddell's App., 84 Pa. 90, 96; Pearre v. Hawkins, 62 Tex. 434, 437; U. S. v. Hacker, 73 F. 292, 294; Scott v. State, 6 Ga.App. 332, 334, 64 S.E. 1005. (4) It means to alienate the direct ownership of property. 18 Corpus Juris, 1280, note 79; Black L. D. (Quot. Ironside v. Ironside, 150 Iowa 628, 632, 130 N.W. 414; Smith v. Becker, 62 Kan. 541, 547, 64 Pa. 70, 53 L.R.A. 141. (5) It means to convey. 18 Corpus Juris, 1280, note 81; Rogers v. Goodwin, 2 Mass. 475, 477; Hunt v. Hunt, 11 Nev. 442, 449. (6) To put into the hands and control of another. 18 Corpus Juris, 1280, note 90 and 91; Peo v. Rathbun, 21 Wend. (N. Y.) 509, 527; Newcomb v. Newcomb, 12 N.Y. 603, 620. (7) As further showing the "Bulk Sales Law" applies to assignments, in section 3 of the Act (Laws 1913, 164) in defining terms, it is provided: "The word vendor in this Act shall include sellers, transferrers and assignors, and the word vendee shall include purchasers, transferers and assignees . . ." "An assignor is one who makes an assignment or transfers property to another. 5 Corpus Juris, 837. An assignee is one to whom an assignment is made. 5 Corpus Juris, 838 et seq. The Drees Hardware & Furniture Company by the deed offered in evidence, made or attempted to make an assignment. Therefore, by virtue of said instrument it became an "assignor," and this being true, the "Bulk Sales Act" by virtue of its terms covers the transfer. The interpleader R. I. Cope, being the one to whom the assignment was made, was and is the "assignee" and his rights and duties are fixed and determined by the "Bulk Sales" Law. The Bulk Sales Law applies to a chattel mortgage, why not to a deed of trust? See Semes et al. v. Ruedinger, et al., 194 Mo.App. 621, 187 S.W. 604. In the case just cited it is held that, "A chattel mortgage to a brewing company of all a saloon keeper's stock of merchandise, fixtures, etc., for a stated money consideration claimed to be then due the brewing company, and purporting to secure a note, was fraudulent and void as to creditors of the mortgagor, where the brewing company did not receive, prior to the transfer, a verified written statement containing the names and addresses of all creditors, and did not notify the creditors before taking possession of the stock or paying the consideration, as required by the Bulk Sales Law (Laws 1913, pp. 163-165)" (8) "Express mention is implied exclusion." In the latter part of section 3 express mention is made of the kind of sales and transfers to which the "Bulk Sales Law" does not apply. Under the above maxim therefore the "Bulk Sales Law" does apply to all sales and transfers "not expressly mentioned" in the exception. An assignment, or an assignment for the benefit of creditors or deed of trust for benefit of all the creditors, are not expressly mentioned in the exception to the operation of the statute, and they are therefore impliedly excluded from the operation of the exception. Let us now see what is excluded from the operation of the statute. The pertinent part of the exception to the section of the statute under consideration reads: "Nothing contained in this act shall apply to Sales by executors, . . . assignees for the benefit of creditors . . . or to sales under deeds of trust for the benefit equally of all the creditors; . . ." In the first place it will be noted that the exception expressly mentions and therefore only applies to "sales." "Assignments" or "other disposition" are not mentioned; therefore, the only kind of a transfer of property exempted from the operation of the statute is a "sale" of some kind. From this we see that assignments and deeds of trust for the benefit of creditors are not exempted. The exemption, however, does cover sales by assignees for the benefit of creditors, but it does not exempt sales or transfers to assignees for the benefit of creditors. If it was intended by the Legislature to exempt transfers to assignees for the benefit of creditors, the statute would have doubtless read: "Nothing in this act shall apply to sales, transfers, or assignment to or by executors . . . assignees for the benefit of creditors . . . or to deeds of trust for the benefit equally of all the creditors, or to sales thereunder." But the statute does not so read. Courts do not make or add to statutes, but merely construe them as enacted by the Legislature. 36 Cyc., 1102, 1103; Clark v. Railway, 219 Mo. 524, 118 S.W. 40; State v. Heman, 70 Mo. 441; Sutherland on Statutory Const., secs. 235, 236, page 311. The sale under a deed of trust given for the benefit of creditors is specifically mentioned in the exemption, but the giving of such a deed is not mentioned in the exemption and therefore the statute applies to it.
J. C. Sheppard and L. E. Tedrick for respondent.
(1) It is the sole contention of appellant that the deed of trust conveying to interpleader the stock of merchandise, is void, for the reason that the Drees Hardware and Furniture Company, failed to comply with the terms of what is known as the "Bulk Sales Law." It is the contention of the respondent that the "Bulk Sales Law," does not apply to a transaction of the kind involved here Session Acts of 1913, page 164, section 3, as follows: The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. This intention, however, must be the intentions, as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority. But where the language of the statute is of doubtful meaning, or where an adherence to the strict letter would lend to injustice, to absurdity, or to contradictory provisions the duty devolves upon the court to ascertain the true meaning. 36 Cyc., 1106, sec. 2; Lumber Company v. Railroad, 216 Mo. 658; Perry v. Strawbridge, 209 Mo. 621. (2) Personal property in possession of a trustee under a valid deed of trust to secure certain creditors, is not subject to attachment by other of the grantor's creditors. Woodson v. Carson, 135 Mo. 521; Jaffrey v. Matthews, 120 Mo. 317; Huiser v. Beck, 55 Mo.App. 668. (3) Whatever frailty there may have been, if any, in the deed of trust, was cured by the trustee taking actual possession of the property before the levy of the attachment writ. Hardy v. Graham, 63 Mo.App. 40; Dobbins v. Meyers, 95 Mo. 132. There being no evidence of fraud in this case the peremptory instructions to the jury was proper. Hardy v. Graham, ib.
Cox, P. J., not sitting.
The defendant, Drees Hardware & Furniture Company, conducted a retail store in Poplar Bluff, and was in failing circumstances. It owed plaintiff $ 350 for rent on the building it occupied. On February 7, 1920, defendant company attempted to convey by written instrument called a deed of trust all of its stock of merchandise of the value of about $ 5000, and its...
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