majority">

Opinion of the Court by

Tompkins, Judge.

James Shepherd brought his action of assumpsit in the circuit court of Lafayette county, against Christopher Trigg. The judgment of that court being given for Trigg, Shepherd brings the cause into this court by writ of error, to reverse the judgment of the circuit court.

It appears by evidence preserved in the bill of exceptions, that Shepherd, the plaintiff, and Trigg-, the defendant in the circuit court, had become security to Stephen Trigg, the father of the defendant, in a note made by them to Jane Heard, for the payment of about two hundred and eighty-one dollars. Jane Heard afterwards obtained a judgment against the makers of this note, and the sheriff of Howard county collected on an execution issued on this judgment from James Shepherd, the plaintiff in error in this suit, one hundred and sixty-nine dollars; the remaining part of the judgment on said note, made to said Heard as aforesaid, being paid by Christopher Trigg, defendant in error. Stephen Trigg, the principal in the note on which the above mentioned judgment was obtained, in satisfaction of which *154judgment Shepherd paid the aforesaid sum of $169, died in the spring of the year of 1836, nearly five years after the payment aforesaid by Shepherd, the plaintiff in error, and to recover this sum of money paid as aforesaid by him, Shepherd commenced this action in the circuit court against Christopher Trigg, defendant in error. Stephen Trigg died in Saline county, and the administrator testified that he sold articles of personal property of the deceased to the amount of four hundred dollars, and that various other articles of property found at the intestate’s residence, were retained by Christopher Trigg, the defendant in error, being claimed under a mortgage. Another witness proved, that the same articles were always retained in the possession of the intestate, Stephen Trigg, till his death, and used by -him as his own ; and that after the death of said Stephen, the defendant in error retained possession of them until they were sold by the sheriff to satisfy the mortgage. The amount of the sales was about six hundred dollars. The defendant in error lived in the family of the deceased.

The defendant in error then read in evidence two mortgages, both made by Stephen Trigg, the deceased ; the one to Christopher Trigg, the defendant in error ; the other to the said Christopher Trigg and James Shepherd, the plaintiff in eiror. The latter mortgage, i. e. that to the defendant and plaintiff in error, was made to secure them the re-payment of any money they might be compelled to pay in consequence of being security as aforesaid for said Stephen Trigg, in the note made by them to Jane Heard. This mortgage was given for the articles retained and sold as aforesaid by the defendant in error, and it recited the first mentioned mortgage, which had been made by said Stephen Trigg, in his lifetime, to the defendant Christopher Trigg, and by this instrument most of the articles which were mortgaged to the plaintiff and defendant in error for the purpose aforesaid, appeared to have been previously mortgaged to the defendant in error, Christopher Trigg. Evidence was given to prove that Shepherd, the plaintiff in error, was informed from other sources of the fact that Christopher Trigg, the defendant in error, had a mortgage *155of older date for much of the same property which had been mortgaged to them, the plaintiff and defendant in error, the purposes aforesaid. Evidence was also given by the defendant in error to show that this mortgage was given to secure to him the payment of so much money by him advanced and loaned to the intestate, Stephen Trigg.

■ The jury were instructed, on the motion of the defendant in error, that if they believed that he never did take into his possession any property of which Stephen. Trigg died possessed, other than the property conveyed to him.by the said Stephen by mortgage, and that the said mortgage was not fraudulent, and that the said Shepherd knew of the said mortgage at the time he became the security of the said Stephen Trigg, then the mere act of Stephen Trigg’s retaining the possession in pursuance of the terms of the said mortgage, does not render said mortgage fraudulent as to plaintiffs; and the taking such possession does not make him executor of his own wrong.

Three instructions were asked by the plaintiff, which the court refused to give. The substance of these was the reverse of that given in behalf of the defendant.

The leading cases decided in Missouri on this head, are in order of time, proceeding from the latest to the earliest: 1st, King v. Baily; 2d, Sibby v. Hood ; 3d, Rocheblave v. Potter. In the case of King v. Bailey, the broad ground is taken, that if a vendee take a conditional bill of sale of goods, and leave them in possession of the vendor, the sale will, so far as creditors are concerned, be fraudulent. See page 580, of the 6 th vol. of Mo. Decisions. In Sibly v. Hood, the same ground is taken ; see page 290 of the 3d vol. of Mo. Decisions. And the case of Rocheblave v. Potter, I vol. Mo. Dec. page 561, is cited and relied on. The facts in the case of Rocheblave v. Potter are these: One Justus Terrill removed to Missouri, and settled in St. Louis county in the year 1818, bringing with- him a slave, the subject matter of that suit. Terrill had also other slaves. In the year 1820, he visited the State of Louisiana, and there, on the 15th day of April of that year, executed a bill of sale to Potter for that slave and others. Immediately alter the *156execution of this bill of sale, Terrill returned to his residence in St. Louis county, and there resided until the 10th day of February, 1821, when he died in the possession of the slave in question in that suit, and of the others named in the bill of sale; and by his will directed his executors to sell and dispose of the slave in question, along with the others named in the said bill of sale. The executors of Terrill, in pursuance of his will, advertised in one of the newspapers of the city of Saint Louis, and sold at public sale the slave in question. This slave was purchased by Mrs. Mary Lisa, and by her sold to Beebee, who sold to Rocheblave, the plaintiff in error, in the case cited. Thus it is seen that, for three years next after the sale of this slave in Louisiana to Potter, it remained in the possession of the vendor, Terrill, in Saint Louis county, when it was sold in pursuance of his will, the purchaser being ignorant of the sale to Potter. For we are told that the bill of sale made by Terrill to Potter, was not recorded in Saint Louis, and that neither Mrs. Lisa, Beebee, nor Rocheblave, had any notice or knowledge until after the sale and delivery of the slave to Rocheblave, of the existence of that bill of sale; for Potter, during all the intermediate time, had resided in Louisiana, and had never taken possession of the slave. The report continues, “many other facts were found which this court, in the view they take of the subject, need not now consider.”

The supreme court, on the authority of this case, and also on the authority of the case of Wallace v. Foster, 2 Mo. Decisions, 231, declared in the case of Sibly v. Hood the law to be, that when the owner of personal property sells it to another person, either on a real or feigned consideration, and the property is nevertheless left in the possession of the vendor, creditors of the vendor are entitled to have such property sold to pay their debts. It may, however, be remarked, that in the case of Sibly v. Hood, it was not necessary to decide this point: for, at page 200 of the 3d vol., it seems that it did not appear in that case that Sibly, according to the agreement betwixt him and the holder of the property then in dispute, had any claim or lien on the property. In King v. Baily, it was decided that if the vendor be allow» *157ed to retain possession of property after a conditional sale, it will be liable to be sold to pay the debts of the

Possession °^opUj0nalb thePvendoraf-„°^^qsa 1 e’ mortgagor af-gtgef^not against cred-pUj" should be left determinef t0 frorn a11 the Ces, whether fide or fraudu-oases o/The ^oc^®“’ave Mo. It. 561; j Sibiy v. R.°°29Cq and pJÍS v-BajU> 6 Mo. R. S76, so far as they “híí decision1 are overru-

The courts of the several states of this Union seem of late much divided in opinion, whether the possession continuing in the vendor is only prima facie evidence of fraud, and may be explained ; or whether it be absolutely fraud, incapable of being explained. I am rather inclined to think, that where such decisions have bee'n made, that they were made under the influence of strong feeling, excited by evidence such as was given in the case of Rocheblave v. Potter, above cited, otherwise the courts would, in all permit the purchaser to introduce evidence to explain, if he could, why the possession did not accompany the right property, or in other words, why the purchaser did not claim the possession of the purchased property.

In the case of Rocheblave v. Potter, a special verdict was found, and the court declared the law on that verdict. In Siblv v. Hood, the opinion of the court on the question of fraud was rather uncalled for, as -the case might well have been decided on other grounds. There remains -then, only two cases, i. e. Wallace v. Foster, and King v. Baily, which strongly support the doctrine, that- in cases of sale possession. must accompany the right of property in order to secure the purchaser’s right of property against creditors the vendor. I am inclined to believe that the better course would be in all cases to permit the purchaser to show cause , 5 . r why he left the vendor m possession of the property, even when there was an absolute sale. But the defendant in error in this cause claims to have the right to the property here under a mortgage deed where the possession -of the is consistent with the claim of the defendant in error. For much better reason, then, I am inclined to believe that the defendant in error ought to be allowed to prove that his claim to the property mortgaged was fair, and consequently that the instruction given by the circuit court at his instance was correct, and that the circuit court committed no error in refusing the instructions asked by the plaintiff in error.

It is the opinion of all the court that the judgment of the circuit court ought to be affirmed, and it is accordingly affirmed.

Citation profile

How this case has been treated — in progress