Walter v. Wimer

• Decision Date: 31 October 1856
• Citation: 24 Mo. 63
• Parties: WALTER, Appellant, v. WIMER et al., Respondents.
• Court: Missouri Supreme Court

24 Mo. 63

WALTER, Appellant,

v.WIMER et al., Respondents.

Supreme Court of Missouri.

October Term, 1856.

1. An assignment of a stock of goods to a trustee for the benefit of a creditor provided that the grantor, until default, should have the use of the property conveyed for the ordinary and legitimate purposes of trade, and should enjoy the same unmolested, provided, however, that he, the grantor, should faithfully apply the proceeds of the sales of the goods, wares, etc., towards replenishing and keeping up the stock to its state at the time of the assignment; and that all goods, wares and merchandise thus acquired after the assignment, should be considered bound for the payment of the debt secured; held, that the assignment was void upon its face, as a matter of law, as against creditors. (Brooks v. Wimer, 20 Mo. 503, affirmed.)

Appeal from St. Louis Court of Common Pleas.

In this suit, the plaintiff, Walter, claiming title to a certain stock of goods, under an assignment by Gustave and Ferdinand Vogeler to himself, as trustee, to secure a debt of $4,000 due to one Carl Vogeler, which said stock of goods had been seized by defendant, Wimer, as sheriff of St. Louis county, under a writ of attachment issued in favor of certain persons, also defendants, and had been sold by said Wimer, seeks to recover damages for the alleged destruction of the security held by him for the payment of the debt.

The deed of trust to Walter is dated September 15th, 1853, and conveyed a stock of goods, wares and merchandise, furniture, fixtures and utensils, belonging to two staple and fancy dry goods stores of the grantors. The deed described specially the articles of which this stock was composed, and contained the following provision: “It is distinctly understood, however, between the said Gustave and Ferdinand Vogeler and the said Carl Vogeler, and this deed is made upon this express condition only, that the said parties of the first part, their executors, administrators, heirs and assigns, shall, notwithstanding this incumbrance, have the use of said property herein conveyed for the ordinary and legitimate purposes of trade, and shall enjoy the same unmolested until default shall be made in the payment of said promissory note; provided, however, that they (G. & F. Vogeler) shall faithfully apply the proceeds of the sale of said goods, wares and merchandise towards replenishing and keeping up their stock to the present state; and that all goods, wares and merchandise thus...