Woodson v. Carson
| Decision Date | 16 October 1896 |
| Citation | 35 S.W. 1005,135 Mo. 521 |
| Parties | Woodson v. Carson et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 135 Mo. 521 at 531.
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Affirmed.
Dowe Johnson & Rusk, Forsee & Forsee and I. J. Ringolsky for appellants.
(1) Respondent's mere unexplained possession of the goods at the time we levied, gave him a prima facie right to recover them from us. Mere possession is prima facie evidence of right. Hence our admission. Best's Prin. Evi., pp. 30 299, 358; Wharton, Evi., secs. 1331 and 1336; Vastine v. Wilding, 45 Mo. 89. (2) But where possession which, prima facie, is evidence of right, is shown to be wrongful, it will not sustain replevin. McMahill v. Walker, 22 Mo.App. 170; Wright v. Richmond, 21 Mo.App. 76; Smith v. Lydick, 42 Mo. 209; Wells on Rep., sec. 168; Herman, Chat. Mort., p. 217. (3) Respondent could not demand possession until default or condition is broken. This is the settled rule in this state whatever it may be elsewhere. Jones, Chat. Mort., last part sec. 426; Barrett v. Timberlake, 57 Mo. 499; Sheble v. Curdt, 56 Mo. 437; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; Turner v. Laughlin, 85 Mo. 438. (4) The clause in the deed providing that the trustee should, "at the request," etc., was a limitation upon the power of the trustee. Even after default, he could do nothing until such request was made. Jones, Chat. Mort., sec. 430; Bowman v. Roberts, 58 Miss. 126; Bowman v. West, 28 S.W. 519; Eitelgeorge v. Bldg. Ass'n, 69 Mo. 52; Jones on Mort., secs. 1174, 1182, 1183. (5) There was no acceptance by any creditor. Jones, Chat. Mort., secs. 104, 106, 108; 1 Cobbey, Chat. Mort., sec. 413; Pingrey, Chat. Mort., sec. 134; Bump, Fraud. Conv., p. 326; Bank v. Morse, 73 Iowa 174; Woodsworth v. Barlow, 68 Iowa 599; Harman v. Myer, 55 Wis. 85; Merrill v. Denton, 73 Mich. 628; Tuttle v. Turner, 28 Tex. 759; Evans v. White, 53 Ind. 1; Baird v. Williams, 19 Pick. 381; Dale v. Bodman, 3 Met. 139; Bell v. Bank, 11 Bush. 34; Hood v. Brown, 2 Ohio 269. (6) The judgment is fatally erroneous. They were not entitled in any event to the goods, and also to their value. R. S. 1889, sec. 7492; Baird v. Taylor, 30 Mo.App. 580; Hewson v. Tootle, 72 Mo. 637. (7) The trustee had no authority to proceed in any other method than that provided in the deed. A strict compliance with every provision thereof was required. Jones on Mort., secs. 1822, 1790, 1782; Koehring v. Muemminghoff, 61 Mo. 408; Powers v. Kueckhoff, 41 Mo. 425; Garde v. Comfort, 39 Mo. 313; Sherwood v. Saxton, 63 Mo. 78; Perry on Trusts, sec. 770; Lewin on Trusts, 423. (8) If respondent's possession was wrongfully taken it continued a wrongful possession. Best's Prin. Evi., pp. 303, 389; 1 Greenleaf Evi., sec. 41; Wharton, Evi., secs. 1284-1286. (9) A trust deed, fraudulent in part, is entirely void whether it be executed to secure one or several creditors.
Ben Phillip, James W. Boyd, and Hall & Woodson for respondent.
(1) This was an action under the statute for the recovery of the possession of personal property. The action is a possessory one. The question involved is the plaintiff's right of possession at the time of the institution of the suit; if the plaintiff was entitled to the possession of the property at that time he must prevail; otherwise not. (2) A mortgagee of chattels after breach of the condition of the mortgage is regarded in law as the absolute owner of the property. Robinson v. Campbell, 8 Mo. 365; Dean v. Davis, 12 Mo. 113; Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; State ex rel. v. Adams, 76 Mo. 605. (3) The mortgagor's interest in the mortgaged property after the mortgagee has taken possession is not subject to attachment or execution against the mortgagor. State to use v. Carroll, 24 Mo.App. 358; Sexton v. Monks, 16 Mo. 156; Boyce's Adm'r v. Smith, 16 Mo. 317; Yeldell v. Stemmons, 15 Mo. 444; King v. Baily, 8 Mo. 332; Steele to use v. Farber, 37 Mo. 72; Pollock v. Douglas, 56 Mo.App. 490; 2 Cobbey on Chattel Mortgages, sec. 724; Jones on Chattel Mortgages, secs. 556, 587; Bank v. Clement, 26 N.W. 583. (4) The mortgagor's creditor is not without remedy. Such creditor may at the proper time maintain a garnishment, or by other proper proceeding may subject the mortgagor's interest in the property to the payment of his debt. Sexton v. Meeks, 16 Mo. 165; Boyce's Adm'r v. Smith, 16 Mo. 317; Yeldell v. Stemmons, 15 Mo. 444; 2 Cobbey on Chattel Mortgages, sec. 724; Bank v. Clement, 26 N.W. 583. (5) Where the mortgage secures several distinct creditors, fraud in the debt of one creditor does not affect the mortgage as to the other creditors, in the absence of all connection between such other creditors and said fraud. Hardcastle v. Fisher, 24 Mo. 70; Pinneo v. Hart, 30 Mo. 561; Foster v. Mullanphy, 92 Mo. 79; Morris v. Lindauer, 54 F. 22; Riggon v. Wolf, 14 S.W. 922; Bump on Fraudulent Conveyances, 488; Jones on Chattel Mortgages, sec. 336; Prince v. Shephard, 9 Pick. 176; Morgan v. Worden, 32 N.E. 783; Rider v. Hunt, 25 S.W. 314; Cohn v. Ward, 15 S.E. 140; Zell Guano Co. v. Heatherby, 18 S.E. 611; Cohn v. Ward, 9 S.E. 41. (6) The defendants in this case for the reasons herein-before stated obtained no right, lien, or interest in the property by means of their attachment and they were trespassers. They, therefore, had no claim, right, or interest to be settled or adjusted in this suit. Bank v. Clement, 26 N.W. 583. (7) But the defendants would not, in case of a judgment declaring Mrs. Levin's debts to be fraudulent, be entitled to be substituted to her place in the deed of trust. Cohn v. Ward, 15 S.E. 140; Hardcastle v. Fisher, 24 Mo. 70; Zell Guano Co. v. Heatherby, 18 S.E. 611. (8) As between the mortgagor and mortgagee, the latter becomes intitled to the possession of the mortgaged property at once upon the execution of the mortgage unless it by express terms or necessary implication provides to the contrary. Jones on Chattel Mortgages, sec. 426, and authorities cited, and sec. 437; 1 Cobbey on Chattel Mortgages, sec. 445; Gear v. Hurd, 92 Ill. 315; McCornell v. Scott, 67 Ill. 274. (9) Where the plaintiff in replevin is entitled to possession, and receives the property under the writ of replevin and retains the same, the measure of his damages is the value of the use of the property during its detention by the defendant. Yeldell v. Stemmons, 15 Mo. 444; State ex rel. v. Adams, 76 Mo. 605.
On the sixth of June, 1893, A. J. Levin by deed of trust conveyed to plaintiff Woodson as trustee a stock of goods, to secure certain creditors therein named. The trust deed recited that said A. J. Levin was indebted to the Saxton National Bank in the sum of $ 1,651.97; to Annie Levin in the sum of $ 1,600; to Max Litzitzsky in the sum of $ 300; to Mark Streicher & Company in the sum of $ 1,463.95; to John F. Stratton & Son in the sum of $ 652.75, and to Peabody & Engelsman in the sum of $ 1,864.86. The deed of trust then recited that if anyone should pay off the whole of the indebtedness within five days from its date, then the deed of trust was to be void. If not paid, then the trustee was authorized to sell said property if requested to do so by any one of the beneficiaries and, out of the proceeds realized from the sale of the same, he should first pay the cost and expense of executing the trust, then he was directed to pay first the amount due the Saxton National Bank in full; second the amount due Annie Levin, in full; third the debt due Max Litzitzsky in full; fourth the claim of Mark Streicher & Company in full; fifth the claim of John Stratton & Son in full; sixth the remainder of the proceeds, if any, was to be paid to the grantor or his legal representatives. The deed was recorded June 7, 1893, and on the same day plaintiff as trustee took possession of the goods.
Mark Streicher & Company and Peabody & Englesman did not accept the provisions made for them under the deed of trust and on the thirteenth day of June, 1893, commenced suits by attachment against A. J. Levin upon their claims and by virtue of writs issued thereunder, defendant Carson, as sheriff of Buchanan county, levied upon and took the goods from the possession of plaintiff.
Plaintiff thereupon commenced this suit of replevin under which he regained possession of the property. The attaching creditors were allowed to come in, as parties defendant, and made answer setting up the attachment suits and claimed the possession and right to possession of the sheriff under the writs issued in those cases. They then charged that the deed of trust was fraudulent and the pretended debts secured thereby were fictitious. Defendants admitted the execution and delivery of the deed of trust and assumed the burden of proving that plaintiff was not entitled to the possession of the property in dispute.
The evidence tended to prove that the debt of Mrs. Levin, who was the mother of the grantor, was, in whole or in part, fictitious. There was no evidence tending to impeach the honesty of the other debts secured or to prove that the trustee or any of the other creditors had knowledge or notice of fraudulent character of the debt to Mrs. Levin, or in any manner participated in the fraud of the grantor.
The court, after hearing the evidence, directed a verdict for plaintiff, in whose favor judgment was rendered, and defendants appealed.
I. Defendants claim the right of possession under the writs of attachment issued some days after the deed of trust had been executed and delivered.
It is settled law in this state that property in possession of a mortgagee or trustee under a valid mortgage or deed of trust is not subject to levy under...
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