Al v. Stevens

CourtCourt of Appeal of Missouri (US)
Citation15 Mo.App. 544
PartiesC. C. RAINWATER ET. AL., Appellants, v. R. H. STEVENS, Respondent.
Decision Date27 May 1884

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

FRANK HICKS, for the appellant: The deed of assignment transfers property to the assignee, in trust for the benefit of the assignor, and is void, whatever may have been the actual intent of the parties.--Rev. Stats. 1879, sect. 2496, p. 417; Burrill on Assign. (4th ed.), sect. 343, p. 514; Ibid., sect. 349, p. 524; Ibid., sect. 200, p. 279; Bigelow v. Stringer, 40 Mo. 195, and cases cited. The provision in the deed that the assignor might select from those assigned such goods, and at such time as he desired, to the amount of $300, to be taken at the value fixed by the appraisement to be made under the statute concerning assignments, is such a reservation for the benefit of the assignor as renders the deed void as to creditors.-- Harris v. Summer, 2 Pick. 134; Clark v. Robbins, 8 Kan. 574; Sugg v. Tillman, 2 Swan, 208; Farquharson v. McDonald, 2 Heisk.--; McCord v. Moore, 5 Heisk. 734; Overton v. Holinshade, 5 Heisk. 685; Whallan v. Scott, 10 Watts, 237; Mitchell v. Stiles, 13 Pa. St. 306; Hart v. McFarland, 13 Pa. St. 182; Nichols v. McEwen, 17 N. Y. 22. Interpleader can not assert his assignor's possible right to select such goods as exempt; nor is his deed, containing a reservation to the assignor of rights respecting the assigned goods, any the less fraudulent because of the possibility that his assignor might have chosen to select, as exempt, some of the goods assigned, if the assignment had not been made, and a levy on such goods had been made.-- Alt v. Lafayette Bank, 9 Mo. App. 91; Osburn v. Schutt, 67 Mo. 712; Thompson on Homestead, etc., sect. 418; 4 Southern Law Rev. 7, 8, 9. There should not have been a money judgment. Neither the statute nor the pleadings here permit it.-- Rev. Stats. 1879, p. 71, sect. 440; Hewson v. Tootle, 72 Mo. 632; Mills v. Thomson, 61 Mo. 415.

W. F. BROADHEAD, for the respondent: Fraudulent intent must be shown.-- Gates v. Lebeaume, 19 Mo. 17; The State to use v. Benoist, 37 Mo. 509. The assignee must share in this intent.-- Hardcastle v. Fisher, 24 Mo. 70; The State to use v. Keeler, 49 Mo. 548; Burgert v. Borchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435. An assignor may reserve a surplus.-- Richards v. Levin, 16 Mo. 599; Johnson v. McAllister, 30 Mo. 331. And may reserve his exemptions.--Burrill on Assign., sect. 202; Linninger v. Raymond, 9 Neb. 40; Dausman's Appeal, 90 Pa. St. 178.

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

This is a suit by attachment brought by the plaintiffs, Rainwater, Boogher & Co., against Edward H. Koch. The attachment was levied on a stock of goods which had been the property of Koch, and R. H. Stevens, Jr., interpleaded, claiming the same as assignee of Koch for the benefit of his creditors. Stevens had claimed the property under the sheriff and marshal's act; the plaintiff had given an indemnifying bond, and the property had been sold, under an order of sale in the attachment suit, before the trial of the issues raised by the interplea of Stevens. The court, sitting as a jury, found this interplea in favor of Stevens, and rendered a judgment against the plaintiffs in the attachment suit for $160, the value of the property for which Stevens had interpleaded. From this judgment the plaintiffs have appealed.

The deed of assignment under which the interpleader claims title to the property attached contains a reservation in the following language: “Saving and excepting the wearing apparel of the family of the said first party, four beds and bedding, and such other household and kitchen furniture not exceeding in value $100; also all provisions on hand not exceeding in value $100, and being for family use; and all Bibles and other books, and in the family of said party of the second part; all the above named goods and chattels being specifically exempt under the laws of the state of Missouri from attachment and execution, and also three hundred dollars ($300) of other personal property to be selected by the party of the first part, in lieu of property exempt under the first and second subdivisions of section 2343 of chapter 32 of the Revised Statutes of Missouri of 1879, said selection aforesaid to be made after the said property hereby assigned has been appraised and inventoried by said party of the second part according to the laws of the state of Missouri regulating and relating to assignments for the sole benefit of creditors, and at its appraised value.”

1. The only substantial question which arises upon this record is whether this deed of assignment is rendered fraudulent in law by the fact that, after reserving to the debtor certain property specifically exempt from attachment and execution (Rev. Stats., sect. 2343), it contains a clause reserving to the assignor $300 worth of other personal property to be selected by the assignor in lieu of property exempt under the first and second subdivisions of section 2343 of the Revised Statutes, such selection to be made after the property assigned has been appraised and inventoried by the assignee according to the statute relating to assignments for the benefit of creditors, and at its appraised value. A deed of assignment for the benefit of creditors, which includes all the property of the assignor, “except such property as is exempt by law,” is not void by reason of the exception, as containing a reservation to the assignor's use. Linniger v. Raymond, 9 Neb. 40; Dausman's Appeal, 90 Pa. St. 198; McCord v. Moore, 5 Heisk. 734. The case of Sugg v. Tillman (2 Swan, 208,) which held the contrary, has been unquestionably overruled in the same court in the later case of McCord v. Moore ( supra), though the court in the latter case do not profess to overrule the former decision. The reason of this rule suggests itself; it is that a debtor does not take to himself an unlawful reservation, when, in a deed of assignment for the benefit of his creditors, he merely reserves to himself what the law has already reserved for him as against attachment and execution of his creditors. Such a reservation has no tendency to hinder, delay, or defraud creditors, because it takes nothing from them which the law gives them.

We can see no substantial distinction between the reservation in the present deed and that in the deeds which were before the courts in the cases above cited. In this deed, a right of selection is expressly reserved; in the deeds there passed upon, such a right is necessarily implied. A segregation of the exempted property from that not exempted would have to be made before the assignee could take possession and make...

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