Weber v. Armstrong

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 a power of disposition in the grantor, the mortgage will be held to be fraudulent; and if it appears on the face of the instrument, either expressly or by necessary implication, that the grantor is to retain possession with a power of sale, the court will declare the deed to be void as a matter-of law. Stanley v. Bunce, 27 Mo. 269 ; Billingsley v. Bunce, 28 Mo. 547 ; State to use of Voullaire v. Tasker, 31 Mo. 445 ; Voorhis v. Langsdorf, 31 Mo. 451 ; State to use of Decker v. *220 D’Oench, 31 Mo. 453 . But the court will not bear extriasic evidence in relation to the validity of- a conveyance and oh. such evidence, as a matter of law, pronounce the conveyance void. Johnson v. McAllister, 30 Mo. 327 .

It is evident from the terms of the mortgage before us, that the grantor was to remain in possession, as it was stipulated that the mortgagee might enter and take possession in the event of default in the payment of any of the notes; but there is not a syllable in the instrument from which it can be fairly implied, much less from which it must necessarily be implied, that the grantors were to have the power to sell. We are not unmindful of the fact that the_property conveyed was merchandise which was purchased and held, up to the date of the mortgage, for the purpose of being sold. This fact, however, cannot vary the interpretation of the deed. It may give rise to conjecture, but as was observed by Judge Napton in the case of Voorhis v. Langsdorf, supra, courts are not warranted in pronouncing deeds to be void upon conjecture merely.

Under the provisions of the 8th section of the statute above cited, personal property of every character may be safely left in the possession of the grantor, provided the mortgage is acknowledged and recorded as therein required. No exception is made by the statute, and this court'has no power to create one. No matter what may be the character of the property, or the, business of the grantor, the very stipulations of the deed that the property shall be held to secure the debt, and that upon default in payment the mortgagee may take possession thereof, and sell the same, are in effect; stipulations that the grantor will not soil it, and unless there are other provisions in the deed expressly authorizing the grantor to sell, or from which it mast necessarily be implied that he has a power of sale, the deed cannot be held void upon its face. The case of Lodge v. Samuels, 50 Mo. 204 , seems to have been decided upon,a different theory; but we do not regard that case as being in harmony with the statute or valuable as a prec *221 edent. Whether there was any agreement or understanding in the case at bar, between the grantees and grantors, that the latter should continue business with the mortgaged stock, and make sales thereof, was a question of fact for the jury.' The judgment of the court of common pleas will be reversed, and the cause remanded.

The other judges concur.