Young v. Keller

• Decision Date: 20 February 1888
• Citation: 7 S.W. 293,94 Mo. 581
• Parties: Young v. Kellar, Appellant
• Court: Missouri Supreme Court

7 S.W. 293

94 Mo. 581

Young v. Kellar, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

Nathan Frank and David Goldsmith for appellant.

(1) The sale of the property in controversy, made to the defendant under the order of the circuit court of Lafayette county vested good title in the defendant. R. S. 1879, secs 424-25-70; Taylor v. Carryl, 24 Pa. St. 259; 2 Smith's Lead. Cas., part 2, pp. 973-4. The reason assigned by these authorities is two-fold, namely: (a) Because the proceeding is in rem; and this ground is favored by Paine v. Moorland, 15 Ohio 435; Freeman v Thompson, 53 Mo. 183, and Williams v. Armroyd, 7 Cranch [11 U.S.] 432. (b) Because the sale is made by the state for the benefit of all concerned, and such sales have ample precedent, and always confer a valid title; and this ground is supported by the following authorities, in addition to those named: Plowden's Comm. 465-6; 12 Coke, 73; Parker v. Cockburn, Parker's Rep. 70; In re Schooner Tilton, 5 Mason, 465; Grant v. McLachlin, 4 Johns. 34; Patterson v. McVay, 7 Watts, 482; Griffith v. Fowler, 18 U.S. 395; Waples on Proceedings In Rem, 744-5-6-7; 1 Wade on Attachment, sec. 27, p. 66; Oeters v. Aehle, 31 Mo. 380; Jennings v. Carson, 4 Cranch, 2. A provision similar to that under which the sale to the defendant was made will be found in 1 R. S. 1879, secs. 2006, 2010, and 2 R. S., pp. 332-3. (2) The admission of the evidence of the endorsement of the check from Knipmeyer to Collins, subsequent to the attachment of the property in controversy, was error. Angrave v. Stone, 45 Barb. 35; Tucker v. Frederick, 28 Mo. 574. (3) The exclusion of the evidence of the order on Knipmeyer to produce his books and of his two returns thereto was erroneous. Confer v. McNeal, 74 Pa. St. 112. (4) The court erred in excluding evidence of the statement made by Knipmeyer to R. G. Dun & Company's Commercial Agency. This evidence was competent. Bump on Fraud. Con. [3 Ed.] 582; Holmes v. Braidwood, 82 Mo. 610. And it was clearly relevant and admissible. Kramer v. Wilson, 22 Mo.App. 173; Singer v. Goldenburg, 17 Mo.App. 549; Lindauer v. Hay, 61 Iowa 663; Shipman v. Seymour, 40 Mich. 274; Gillet v. Phelps, 12 Wis. 392; United States v. 36 Barrels, 7 Blatch. 470; Angrave v. Stone, 45 Barb. 35. (5) The court erred in refusing the instructions numbered ten, eleven, and twelve, and in giving the instructions numbered five and six. In the absence of evidence to the contrary, the jury were bound to find that plaintiff never paid for the property in controversy, since the burden of proof was on the plaintiff; the admitted facts leave no room for question. Bump on Fraud. Con. [3 Ed.] 55; Redfield v. Dysart, 62 Pa. St. 62; Merrill v. Locke, 41 N.H. 486.

W. C. Marshall and J. D. Shewalter for respondent.

(1) If Young was the owner of the property (which depended, under the rulings of the court, on the good faith of Knipmeyer), the attachment and order of sale did not divest him of title. Process of law against A and his property is no process against B or his property, and replevin can be maintained. Criley v. Vasel, 52 Mo. 445-49; Belkin v. Hill, 53 Mo. 492; Clark v. Brott, 71 Mo. 473; Drake on Attach., sec. 196; Wangler v. Franklin, 70 Mo. 659; Burgert v. Borchert, 59 Mo. 85. No person can be deprived of life, liberty, or property without due process of law -- property is placed in the same category as life and liberty. Clark v. Mitchell, 64 Mo. 564. Attachment, except in case of non-resident defendant when the proceedings are quasi in rem, is merely in aid of the suit. It is the property of defendant that is to be seized. R. S., secs. 398, 402, 416; Bray v. McClurg, 55 Mo. 128; 57 Mo. 160; Freeman v. Thompson, 53 Mo. 183; 62 Mo. 516. (2) There was no error in the admission of the check given subsequent to the attachment. This matter was gone into by defendant on cross-examination, and after that, plaintiff had the right to introduce the check in support of the evidence drawn out by defendant. On the theory held by plaintiff in the case, it was competent as a part of the contract. (3) The return made by Knipmeyer in his own case to produce books, was in that case held by the court to be sufficient; was long after the transaction, and if it tended to show anything, it was only his intent at the time of making the return, and hence was inadmissible. (4) There was no error in excluding the statement to a representative of Dun's agency. The statement was in October, after the purchase of all goods; was not relied on or even seen by the creditors. (5) The instructions fairly submitted the whole case for both parties -- submitting the case on the good faith of Knipmeyer in making the sale. (6) Plaintiff contends that in this case the judgment is right, and in no event, for two reasons, could there be a finding for defendant. (a) No such issue as fraud was set up by the answer, the issue of fraud being confined to the seller alone, and he, and not plaintiff, should have been charged. (b) The order of sale was made; no order was ever issued to the sheriff, and like an execution, this is his authority; not having it, he could make no sale. "The clerk shall deliver to the officer a copy of every such order." R. S., sec. 425.

OPINION

Sherwood, J.

Action of replevin for a stock of goods brought by plaintiff, Young, against defendant, Kellar. The answer of Kellar contained two counts; the first denies that Young is the owner of the goods, etc.; the second count sets forth that Kellar is the owner of the goods and was such owner at the time of the institution of the suit; that several suits by attachment were instituted in the circuit court of Lafayette county by divers parties against one Wm. Knipmeyer, the grounds of attachment being that Knipmeyer was about fraudulently to dispose of his property, etc.; that, by virtue of the several writs of attachment issued in those causes, the sheriff levied upon and took into his possession, as the property of Knipmeyer, the goods in controversy; that, under an order of the circuit court, the goods so levied on were sold as perishable property, and defendant became the purchaser of the goods, paid therefor, and the sheriff delivered the goods to him, and that all these things occurred prior to the institution of the present action. The answer concludes with a prayer for a return of the property, etc. To this answer the plaintiff filed a formal replication. On these pleadings the cause was tried, resulting in a verdict for the plaintiff, from which the defendant appealed to the St. Louis court of appeals, where the judgment being affirmed he appeals here.

The testimony in the cause tended to show that Knipmeyer was actuated by a fraudulent intent in the transaction, and there was testimony to the contrary. It seems that Knipmeyer was a merchant doing business in Higginsville. Becoming embarrassed in his business he went to Mr. Collins, an attorney, with the view of making an assignment. From this purpose Collins dissuaded him, on the ground that there was a good deal of red tape about an assignment, and probably a great sacrifice of the property would occur at the sale which would follow, and that it would be better for his creditors, if he could find a purchaser, to sell the entire property at a fair price, allow some responsible person to collect the proceeds and divide the same pro rata among his creditors. Thereupon such a sale was made to the plaintiff, a rival merchant of the same town, at sixty per cent. of the cost price of the goods, which it appears was a fair price, considering the stock as a whole, and the agreement was that he should pay the purchase price to Collins, who should distribute the entire proceeds pro rata, as aforesaid. Accordingly, possession of the goods was delivered to plaintiff, but, inasmuch as the precise amount of the purchase price could not be ascertained until an invoice was taken, payment was deferred until that time. Meanwhile a check for seven thousand dollars, drawn in favor of Knipmeyer, but not indorsed by him, was handed to Collins, the agreement being that when the precise amount should be ascertained, the check given, which was thought large enough to cover the purchase price, should be exchanged for one which would cover the precise sum.

At the time this check was drawn plaintiff ordered the bank not to pay any check over two thousand dollars. It does not appear that this order was ever countermanded. On the morning of the third day after the sale and delivery of the goods to the plaintiff, and before the invoice was completed, writs of attachment were levied on and possession taken of the goods and the plaintiff was garnished. Two or three days after this "the thing got rather mixed," and plaintiff went up to Lexington to consult his attorneys, when he was informed that he would be compelled by law to stop the payment of the check, and he followed the advice of his attorneys. After consulting with them he gave in exchange for the seven thousand dollar check the one for six thousand, two hundred dollars for the goods, the latter check being indorsed by Knipmeyer to Collins.

The instructions asked and given, and asked but refused, are as follows: For the plaintiff the court gave the following instructions:

"1. If the jury believe from the evidence that William Knipmeyer made a sale and delivery of the goods in question, previous to the attachments, to plaintiff honestly for the purpose of using the proceeds toward the payment of his debts, and with no intent to hinder, delay, or defraud his creditors, you will find for the plaintiff."

"2. The jury are instructed that the law favors and will uphold any fair and honest disposition of his...