Worley ex rel. Standley v. Watson

Philips, P. J. This case is determined upon the construction given to section 2505, Revised Statutes, which declares that: “Every sale made by a vendor of [552] goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers, in good faith.” The contention of defendants is, that there was no such overt act of delivery of the horse by Clements to plaintiff, evidencing a change of possession, as contemplated by the statute. Had the vendor been in the visible possession of the horse at the time of the alleged sale the position of defendants would be tenable. Hut the proof was, that, at the time of the sale, the horse was not so in the possession of the vendor. It was not even on the premises of Clements, but was one mile and a half therefrom, in the pasture of Dowis, who had the horse as an agister for hire. It is true that Dowis testified that he was not to salt the horse or look after him. But this did not entirely break the relation of bailor and bailee between Clements and Dowis, as the latter would still have been answerable to the former for any neglect, such as unnecessarily exposing the horse to injury while in his pasture, or to escape by negligently leaving his fence down, and the like acts. Being in Dowis’ pasture, to be kept by him for hire, he must return it to Clements, or his agent, or vendee. And being so in said pasture the horse was visibly in the possession of Dowis, and not apparently in the possession of the vendor, Clements. The statute was designed to prevent the vendor, remaining in the apparent possession of personal property as before the imputed sale, from making a symbolical delivery, as it would be calculated to give him a fictitious credit, and thereby enable him to mislead and defraud creditors. How v. Taylor, 52 Mo. 397-8. Where the property is thus in the possession of a bailee of the vendor, it is a sufficient transfer of the [553] possession for the vendor to notify the bailee of the fact of sale, and to direct him thereafter to recognize the vendee as the owner. And it would make no difference in such case whether or not the bailee assented thereto. He could not, by any act of his, thwart- the rights of the purchaser. How v. Taylor, supra; Linton v. Butz, 7 Barr. 89 ; Tierce v. Chipman, 8 Vt. 334. In Erwin v. Arthur et al. (61 Mo. 387), it is held, • that in the sale of personal property it is not necessary that the vendor should be in the actual possession at the time. The possession of the agent or bailee after sale is the possession of the vendee. Dowis, the bailee, was notified of the fact of purchase before the defendant Watson obtained his judgment. The defendant also had notice of the sale before he made his levy. While this latter fact would not, in a proper case, prevent the judgment creditor from controverting the fact of delivery and change of possession, as required by the statute, yet it is important, under the facts of this case where the record fails to show that the defendant became a creditor of Clements after the reputed sale. The statute in question applies only to subsequent creditors of the vendor. It does not lie in the mouth of antecedent creditors to question such sale where it is good as between vendor and vendee. Defiance Machine Works to. Trisler, 21 Mo. App. 69, followed by this court in Tufts to. Thompson et al., postp. 565. Before the defendants could invoke this statute it devolved upon them to show that they were such subsequent creditors. No such proof is disclosed by this record. Defendants sought to put in evidence certain statements made by Clements respecting the purchase of the horse, made by him between the date of sale and the levy of the execution. The court properly excluded these statements. The vendor, after sale, and after he has parted with the title and the possession, cannot im [554] press the title of Ms vendee by any act or declaration of his. He then stands related to the property as any other stranger. Criddle's Adm'r v. Criddle, 21 Mo. 522; Weinrich v. Porter, 47 Mo. 293; Gutzweiler v. Lackman, 39 Mo. 91. We do not deem it important to consider the instructions refused, as those given by the court were all the defendants could claim under the facts of this case. There being no question as to the sale, as between Clements and Stone, the agent of plaintiff, and the defendant Watson having failed by his proof to put himself in a position to question its validity under the statute of frauds, the verdict was for the right party. The other judges concurring, the judgment of the circuit court Affirmed.