Weber v. Armstrong

• Decision Date: 31 October 1879
• Citation: 70 Mo. 217
• Parties: WEBER v. ARMSTRONG et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 217

WEBER

v.ARMSTRONG et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Louisiana Court of Common Pleas.--HON. G. PORTER, Judge.

REVERSED.

Robinson & Smith for appellant.

1. The mortgage from Armstrong to Weber was not fraudulent on its face. There was nothing in it giving Armstrong the right to remain in possession of the goods and sell them for his own benefit; and the power to sell must have been given to Armstrong in the mortgage itself, before the court could, as a matter of law, declare it fraudulent. When the mortgage is not fraudulent on its face, the court cannot hear evidence, and then, as a matter of law, declare it fraudulent. Zeigler v. Maddox, 26 Mo. 575; Johnson v. McAllister, 30 Mo. 327. 2. The retention of the possession of the mortgaged property by the mortgageor did not make, nor tend to make, the mortgage fraudulent. See Howell v. Bell, 29 Mo. 135; Wag. Stat, § 8, p. 281. 3. The oral testimony introduced by plaintiff did not help his case. It did not tend to show any agreement between Armstrong and Weber by which Armstrong was to retain possession, with power to sell, for his own benefit. And while it showed that Armstrong did remain in possession, and sell, it failed to show that he did so in pursuance of any agreement with Weber, or with Weber's knowledge and consent. See Metzner v. Graham, 57 Mo. 404, and page 409.

O. C. Bryson for respondent.

1. The mortgage is a conveyance to the use of the grantors, and is fraudulent and void. Wag. Stat., § 1, p. 279. It affirmatively shows that it is to the use of the grantors. The same language used in other deeds has been repeatedly construed by this court and held to imply that the grantors are to remain in possession and dispose of the goods for their own benefit. On the question of possession the deed itself is plain, since it provides that “the mortgagees in default may take possession,” thereby clearly implying that till then the grantors remain in possession. Lodge v. Samuel, 50 Mo. 204; Stanley v. Bunce, 27 Mo. 269; Billingsley v. Bunce, 28 Mo. 547. 2. Not only does the deed, on its face, appear to be fraudulent as showing that the grantors were to remain in possession and continue to sell, &c., in ordinary course of business, but that such was the understanding between the parties thereto, and that the grantors did actually remain in possession of and sell, &c., the goods, is amply established by the testimony.

HOUGH, J.

This was a suit by attachment, instituted on the 13th day of June, 1876, on the ground that the defendants had fraudulently conveyed or assigned their property or effects so as to hinder or delay their creditors.

It appears from the record that on the 12th day of February, 1876, the defendants executed to Meyer Bros. & Co., a mortgage on “all their stock of drugs and fixtures contained in their drug store,” in the city of Louisiana, to secure the payment of certain promissory notes. This mortgage, which was duly recorded on the 14th day of February, 1876, provided that in the event of default of either of said notes, “the said Meyer Bros. & Co. may enter and take the property hereby conveyed,” and after giving the prescribed notice proceed to sell, &c. The mortgageors remained in possession of the stock mortgaged and continued to make sales therefrom as usual.

The court below declared the mortgage to be void upon its face under the 1st section of the statute on fraudulent conveyances, as having been made to the use of the grantors. The 8th section of this statute provides that no mortgage of personal property shall be valid except between the parties thereto, where the mortgageor retains possession of the mortgaged property, unless the mortgage be acknowledged and recorded in the manner provided for conveyances of land; (Wag. Stat., § 8, p. 281;) and this court has repeatedly decided that the mere possession of the property by the grantor will not defeat the mortgage. Where, however, such possession is coupled with...