Walter v. Wimer

I. 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, &c., 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 he 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 Yogeler to himself, as trustee, to secure a debt of $4000 due to one Carl Yogeler, 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 15, 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 oE which this stock was composed, and contained the following provision: “ It is distinctly understood, however, between the said Gustave and Ferdinand Yogeler and the said Carl Yogeler, 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 encumbrance, 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. Yogeler) 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 by them acquired hereafter, shall always be considered bound for the payment of said promissory note and subject to this encumbrance, the same as the property now on hand and herein conveyed. And it is further distinctly understood between the said parties hereto, and an express condition of this deed, that said Gustave Yogeler and Ferdinand shall have the right and privilege at any time to remove their said stock of goods, wares, merchandise, furniture, fixtures and utensils as aforesaid, (either the whole or part only, as they may choose,) to any other locality or localities, within the limits of the city of St. Louis, they may think proper ; and such removal shall not in the least affect the liability herein created.” The promissory note, to secure which this assignment was made, was of even date with the deed, and was payable two months after date. The writ of attachment was levied by sheriff Wimer, June 23, 1854 ; the sale by the sheriff took place July 11, 1854. The deed of assignment was recorded January 18, 1854. Plaintiff demanded judgment for the amount of the note. A demurrer to the petition was sustained by the court. Plaintiff appealed. cited 11 Mo. 870; Burrill on Assignments, 174; Skinner v. Thompson, 21 Mo. 10 ; 20 Moi Rep. 505. cited Brooks v. Wimer, 15 Mo. Rep. 459.