Elliott v. Keith

Ellison, P. J. — On September 5, 1887, Elliott, as administrator of Creasey, instituted an action in the Lafayette circuit court against George G. Keith, suing out a writ of attachment in aid of his suit. The sheriff of Lafayette county having levied the attachment on certain property, as the property of the said Geo. G. Keith, Ann M. Keith his wife, the respondent, filed her interplea claiming certain parts of said property, on which issue was had, which constitutes this [122] action, and the interpleader having prevailed on the trial of said interplea, the administrator appeals to this court. The court gave the following instructions for inter-pleader : “1. The court declares the law to be that upon the pleading and the evidence the court will find for inter-pleader.” “2. The court declares the law to be that if the interpleader Ann Keith purchased the three cow's mentioned in the evidence from her husband Gr. Gr. Keith for a valuable consideration, to-wit, the sum of one hundred and twenty-five dollars received by her from her relatives and nob from her husband, and that the property in controversy is the natural increase from said cows, then the court will find for the inter pleader.” iC 3. The court declares the law to be that if the sale of the cows from which the cattle in controversy are the increase was valid as between interpleader and her husband, then it was also valid as to the attaching creditor of her said husband, Ben. Elliott, administrator, his claim having risen prior to the said sale between said interpleader and her husband.” The court refused to give the following instructions asked for by the defendant Elliott, administrator: “1. If the court believes from the evidence that at the time of the alleged purchase of the cows, from which the property in controversy was bred, by Ann M. Keith, from her husband George G. Keith, there was no price agreed upon for said stock, and in fact there was never any price agreed upon therefor, and said Ann Keith did not take possession of such stock, and that at the time of such alleged sale the said George G. Keith was indebted to Samuel W. Creasey on the note sued on in this case, then such alleged sale was and is void as to Samuel W. Creasey, and as to the said Benjamin Elliott as the administrator, and the court will find against the claim of such interpleader.” “2. If the court believes from the evidence that at [123] the time of the alleged purchase of the cows, from which the stock in issue was bred, and of which said stock was the natural increase, by the said Ann M. Keith from her husband George G. Keith, there was no actual and continued change of possession of the said cows so claimed to be sold, but that the possession thereof remained with the said George G. Keith, and did so remain with him down to the time of the seizure thereof by the sheriff under the writ of attachment against the said George G. Keith, and if the jury further believe from the evidence that prior to the time of such alleged sale, said George G. Keith was indebted to the said Samuel W. Creasey on the note sued on in said attachment suit, and is still indebted thereon to the said Benjamin Elliott, as the administrator of the said Samuel W. Creasey, then such alleged purchase and sale of such cows was and is fraudulent and void as to the said Creasey and his administrator, and the court will find for the said administrator and against the claim of the interpleader herein.” We will reverse this judgment for the error in instructions one and three, given for interpleader. The trial court in passing on these instructions was doubtless acting under the decision of this court in Worley v. Watson, 22 Mo. App. 546, wherein it was declared that section 2505 did not apply to prior creditors. That case was overruled. See Knoop v. Nelson, 26 Mo. App. 303; Harmon v. Morris, 28 Mo. App. 326. The instructions refused for defendant were correct except as they relate to the question of possession ; and the error in this respect lies in not having regard to the relationship of the parties to the alleged sale. There is much personal property connected with the household of a husband and wife, and used by them in common, that may be said to be, in a certain sense, in their joint possession, and whereby an open, notorious and unequivocal change of possession, such as is required by the statute between an ordinary vendor and vendee, could not well be established by evidence. There must be a [124] change of possession in fact, but the difficulty lies iu making it apparent, and in passing on the validity of a statutory sale of personal property. When the vendor and vendee are husband and wife, I think regard should be had to that exceptional and peculiar relationship. If the article be a bureau or dressing-case in their bedroom, it could not be expected that it should be given up to the use of one to 'the exclusion of the other, or that it should be changed to some other apartment. ' The statute was enacted to avoid imposition and fraud, as well as may be, by compelling a change of possession contemporaneously with a change of ownership, but when we consider the situation' of husband and wife as vendor and vendee, as regards property in daily domestic use, we find that there cannot be that open and notorious change of possession required in ordinary cases. So too, at least in most instances, the same may be said of property under the supervision of the husband, such, ordinarily, as live stock on a farm. The situation of the parties is such that there cannot be had that evidence of change of possession which would be obtainable in ordinary cases. Unless, then, we are prepared to say that there cannot be in this state a sale of personal property between husband and wife, we are compelled to recognize the exceptional situation, as vendor and vendee, of such parties. A question somewhat of this nature was considered in regard to a conveyance - from one of three partners to the1 other two. Criley v. Vassel, 54 Mo. 445. The question, as it relates to a gift, was considered in Davis v. Zimmerman, 40 Mich. 24, and the conclusion of Cooley, C. J., was the same as herein stated, I would not be understood as saying that there is no way whereby a change of ownership and possession may be established. A claim of property should,’ of course, be made, as well as acts of ownership had upon occasion, The judgment is reversed and the cause remanded. All concur. *