State ex rel. Cochran v. Cooper

Ewing, C.

This was a suit commenced in Howard county by the respondent against the appellants, and moved to Monroe county h|r change of venue. The suit was upon the sheriff’s bond, and as breaches alleged that certain parties had sued Ritchie & Co. in Howard county by attach *465 ment; that writs issued and were served by the sheriff by seizure of certain goods and merchandise, as the property of Ritchie & Co.; that this merchandise did not belong to Ritchie & Co.; that it had been long before conveyed to respondent Cochran by Ritchie & Co. by a deed of trust for the benefit of certain parties named in the deed, who were bona fide creditors of Ritchie & Co., and that that deed was duly recorded. The answer denied the allegations in the petition, and alleged that the deed of trust was made for the purpose of hindering and delaying creditors, and was fraudulent and void as to defendants, who were attaching creditors of Ritchie & Co.

The deed of trust being offered in evidence, was objected to by the defendants, 1st, Because it was void for uncertainty of description, which was as follows: “ The stock of merchandise and all other personal property, including scales, etc., now contained in the store-room occupied by said firm of Ritchie & Co. in Fayette, Howard county, Missouri, also one sorrel horse and delivery wagon and set of single harness, listed and invoiced and of the value of $3,113.92, as per schedule made.” 2nd, Because the deed was fraudulent on its face. The deed provided “ that with the consent of the grantors and a majority in interest of the beneficiaries, he (the trustee) may make a sale in bulk, if so desired,.upon such terms of credit as may be assented to by the grantors and a majority in interest of said creditors.”

i. deed of trust of T™Svui^du0yBas against creditors. The deed also provided that the trustee Cochran was to take immediate possession of the stock and proceed to sell the same at private sale, etc. There was some question raised as to whether or not the taking possession by the trustee was sufficient under the deed. This might be a question of importance, if it were not for the fact' that the deed of trust was acknowledged and recorded as the law directs, which renders possession unnecessary. Rev. Code 1870, § 2503. The deed requires the trustee to “ take immediate posses *466 sion,” and in such case it is held that such requirement must he complied with, and under the circumstances of this case, and the fact of the recording of the deed, my opinion is that the possession was sufficient. Stern v. Henley, 68 Mo. 262 ; Wright v. McCormick, 67 Mo. 426 ; Bishop v. O’Connell, 56 Mo. 186 ; Lesem v. Herriford, 44 Mo. 323 ; Claflin v. Rosenberg, 42 Mo. 439 . These cases all pass upon the question of possession, hut it seems that in none of them did the question of recording a deed, whereby change of possession was made unnecessary, cut any figure. There must he either “ an actual and continued change of the possession,’’ or the conveyance must be by deed duly “executed and acknowledged by the vendee and recorded.” One or the other must be done, but either is sufficient.

2.-¡description, The description contained in the deed of trust identified the articles conveyed. This deed specifies “ the stock of merchandise and all other personal property ” in a certain room, and then specifies other outside property. This is a sufficient description by which to identify the property conveyed, which is all that is required. Crow v. Bank, 52 Texas 362 . The purpose of the description is to he such that the property may he reasonably identified. Herman on Chattel Mortgages, § 38. Then again, an inventory of the articles conveyed was offered in evidence in aid of the description in the deed, which was right and proper. Herman on Chattel Mortgages, § 39.

3_. trustto sell on credit. The appellant insists that the conveyance under consideration was fraudulent on its face and should have been so declared by the court as a matter of law. There was no reservation in this deed for the benefit of the grantor. He was not authorized by the instrument to sell at all, but the trustee was to take immediate possession, and sell and apply the proceeds to the payment of the debts. The grantor was not to retain possession even much less to retain possession and sell. The deed must he void on its face before the court will so declare it as a matter of law. Weber v. Armstrong, 70 Mo. 217 ; *467 Hewson v. Tootle, 72 Mo. 632 ; Metzner v. Graham, 57 Mo. 404 .

4. judgments ON penad bond. The judgment in this ease was only for the amount of damages assessed and not for the penalty of the bond with special execution as provided by law, and for this reason the judgment will be reversed and the cause remanded, with directions to the circuit court to enter up the judgment required by the statute. State to use of Gates v. Fitzpatrick, 64 Mo. 185 .

Concurred in by Philips, C.; Martin, C., absent.