Wangler v. Franklin

Citation70 Mo. 659
PartiesWANGLER v. FRANKLIN et al., Appellants.
Decision Date31 October 1879
CourtUnited States State Supreme Court of Missouri

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Replevin for a portable mill and boiler. The facts were as follows: Bemis, Bro. & Co. having caused an attachment to be levied on the mill and boiler as the property of Hursh, Graham & Co., the plaintiff, Wangler, claiming title, asked and obtained leave of court to interplead in the litigation which ensued, in order that he might assert his title. He failed, however, to file an interplea, and there was a special judgment in favor of Bemis, Bro. & Co., and against the property. While defendant, Franklin, still had possession of it as sheriff, by virtue of the writ of attachment, Wangler brought this action. The testimony tended to show that he had sold and delivered the property to Hursh, Graham & Co., but that the agreement was that the title should not pass until the purchase money was paid, and that it had never been paid. This agreement was merely verbal. Plaintiff had judgment for the return of the property and $500 damages for its detention.

Martin & Priest for appellants.

Edwin Silver for respondent.

1. CONDITIONAL SALE OF PERSONALTY.

SHERWOOD, C. J.

Where property is sold upon condition that the title is to remain in the seller until the purchase money is paid, this contract is a valid one, and will be respected and enforced by the courts even against a bona fide purchaser. Robbins v. Phillips, 68 Mo. 100, and cases cited. Section 5, page 280, 1 Wag. Stat., in relation to fraudulent conveyances, has no application to this case. Miller v. Bascom, 28 Mo. 352.

2. REPLEVIN: attachment: interplea: estoppel.

Two remedies are open to a party whose property is seized by an attaching creditor as the property of a third person in possession of it. He may either, under statutory provisions, interplead for the property, (1 Wag. Stat., § 52, p. 192,) or he may resort to his action of replevin. Burgert v. Borchert, 59 Mo. 85. We are not of opinion that plaintiff lost any right he previously possessed to sue in replevin, by reason of his asking and obtaining leave to interplead in the attachment suit of Bemis, Bro. & Co. against Hursh, Graham & Co., since he did nothing more in the case than this, nor was he made a party to the action, nor any judgment rendered against him. The permission granted to plaintiff to interplead in that suit was simply a recognition of a right which the...

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20 cases
  • Redenbaugh v. Kelton
    • United States
    • Missouri Supreme Court
    • November 19, 1895
    ... ... remain in the vendor until the purchase money is paid, is ... valid, and will be enforced even against a bona fide ... purchaser. Wangler v. Franklin, 70 Mo. 659; ... Parmlee v. Catherwood, 36 Mo. 480; Sumner v ... Cotty, 71 Mo. 121; Little v. Page, 44 Mo. 412; ... Matthews v ... ...
  • Frizzell v. Stewart Lumber Co.
    • United States
    • Missouri Supreme Court
    • December 21, 1931
    ... ... Ridgeway ... v. Kennedy, 52 Mo. 24; Michigan Buggy Co. v ... Woodson, 59 Mo.App. 550; Wangler v. Franklin, ... 70 Mo. 659; Palmer v. Catherwood, 36 Mo. 479; ... Little v. Page, 44 Mo. 412. A consignment of goods ... by one merchant to ... ...
  • Fahy v. Gordon
    • United States
    • Missouri Supreme Court
    • March 17, 1896
    ... ... Carroll, 24 Mo.App. 358; Mfg. Co. v. Chrisman, ... 28 Mo.App. 308; Keck v. Fisher, 58 Mo. 532; ... Thompson v. Foerstel, 10 Mo.App. 290; Wangler v ... Franklin, 70 Mo. 659; St. Louis Drug Co. v ... Robinson, 81 Mo. 18. Second. And in such case, where the ... officer seizes goods in ... ...
  • Jerome P. Parker-Harris Company v. Stephens
    • United States
    • Missouri Court of Appeals
    • August 10, 1920
    ...et al., 36 Mo. 479; Little v. Page, 44 Mo. 412; Ridgeway et al. v. Kennedy et al., 52 Mo. 24; Robbins v. Phillips, 68 Mo. 100; Wangler v. Franklin, 70 Mo. 659; Sumner Cottey, 71 Mo. 121; Kingsland-Ferguson Mfg. Co. v. Culp, 85 Mo. 548; Buggy Co. v. Woodson, 59 Mo.App. 550. (2) Such conditio......
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