Spitz v. Kerfoot

Smith, P. J. This was a proceeding in equity, instituted to protect and hold property in the hands of the defendant Kerfoot as trustee until the plaintiffs could bring their action and recover at law to enforce a supposed vendor’s lien for the purchase price of personal property sold by them to the defendant Cohen, the grantor in the deed of trust. The petition in substance states, that on the — - day of August, 1889, the — 81 — plaintiffs sold and delivered' to Alfred Cohen, the grantor in the deed cf trust, boys’ and youths’ clothing, to the amount of $557.25 ; that afterwards the said Cohen made, executed and delivered to James H. Kerfoot as trustee a deed of trust wherein and whereby he conveyed, or attempted to convey, to said Kerfoot all of the goods mentioned in the plaintiffs’ petition, as well as a large quantity of other goods, then in the store of Cohen, the grantor in the deed of trust, at Trenton,, Missouri, the said goods, so conveyed, to be sold by said trustee for the benefit of the beneficiaries named in the deed of trust; that the deed of trust was made in fraud of all the creditors of said Cohen, and that the five days, named as an extension of time in the said deed of trust, in which said Cohen might pay off the sums named as owing the several beneficiaries mentioned in the deed of trust, was merely a sham, and that no time was actually given, and none was intended to be given, by said trustee or the beneficiaries named in said deed of trust, but that it was understood and agreed by and between all the parties thereto, at the time the deed of trust was executed, that the trustee should proceed to sell the goods conveyed at once and the said trustee did so proceed ; that the plaintiffs were not named as the beneficiaries in said deed of trust; that there was no consideration other than the antecedent indebtedness then owing, — a large part of which was then past due, — to the beneficiaries ; that the account owing to the plaintiffs was not yet due, and, therefore, they could not bring their action to recover judgment at that time, to enforce their lien for the purchase price of the goods sold to Cohen; that Cohen was at the time of the making of the deed of trust, and long prior thereto had been, hopelessly and totally insolvent, and that he had not paid for said goods or any part of them, all of which facts he, as well as the beneficiaries named in the deed of trust, well knew; but that — 82 — notwithstanding this knowledge, the said beneficiaries procured him, the said Cohen, to make and execute the deed of trust and turn over and deliver to the said trustee for their benefit all of the assets and property of which he, the said Cohen, was in anywise possessed. And the petition further stated: That if the court should not restrain the trustee from selling and disposing of the property mentioned in the plaintiffs’ petition, until they could obtain their judgment and execution, and on which property the plaintiffs had a right to a vendor’s lien, they, the plaintiffs, would lose all their debt. The petition set out each item of the goods and its price, and fully identified each of said articles sought to be affected by the lien of the plaintiffs. The answer was a general denial. At the final hearing, the 'trial court found the issues for the defendants and accordingly rendered judgment, from which plaintiffs have appealed. I. Upon grounds which we shall presently state, we do not think the petition states facts which entitle the plaintiffs to the relief demanded or to any other relief, and, therefore, we shall confine our examination of the case to that pleading alone. Section 4914, Revised Statutes, 1889, does not create a lien in favor of the seller of the goods, though it may be considered in some cases in the nature of a lien — an inchoate, embryonic lien, which does not attain the dignity of a full-fledged lien until an execution is issued on a judgment for the purchase price. Woolfolk v. Kemper, 31 Mo. App. 421 ; Bolckow Milling Co. v. Turner, 23 Mo. App. 103 ; Lawrence v. Owens, 39 Mo. App. 319; Parker v. Rodes, 79 Mo. 88; Norris v. Brunswick, 73 Mo. 256 ; Francis v. Thomas, 86 Mo. 84. The well-established principle of equity is that, before it will lend its aid, the party invoking it must have gone as far as he may with his legal remedy. Merry v. Freeman, 44 Mo. 518; Alnutt v. Leeper, 48 Mo. 319; — 83 — Crim v. Walker, 79 Mo. 335; Martin v. Michael, 23 Mo. 50. In Martin v. Michael, supra, it was stated that the creditor must have completed his title at law by judgment and execution before he can question the disposition of the debtor’s property. The reason of the rule seems to be that until the creditor has established his title he has no right to interfere and it would lead to an unnecessary, and perhaps a fruitless and oppressive, interruption to the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor he has no concern with his frauds. And in Woolfolk v. Kemper, supra, this principle of equity was applied to a case of this kind. It was there said that “the only method of subjecting property for the purchase price is to obtain a judgment therefor.” Until this is done the seller has not placed himself in a position to call into requisition the assistance of a court of chancery. Applying this principle to the facts alleged in the petition and it is, therefore, plain that the plaintiffs have not placed themselves in a position to invoke the aid of injunctive process. They had not a judgment for the purchase price of the goods sold to the defendant Cohen. The statute creates no right or interest in the goods, in favor of the seller, which a court of equity, before judgment for the purchase price, can lay hold of, and by means of which equitable relief can be made effectual. We do not doubt that, if the plaintiffs were in a position to call into requisition the flexible powers of a court of equity, it would enforce the lien of the seller for the purchase price of the goods, even in the hands of a trustee or assignee, and, perhaps, would follow the fund arising from a sale of such goods m cases where there was proper notice that the goods were not paid for when the trust was created. The case of Boyd v. The Ward Furniture, Stone and Carpet Co., 38 Mo. App. 211, decided by the St. — 84 — Louis Court of Appeals, has been cited by the plaintiffs as lending authoritative support to their contention that they were entitled to a lien before they put their claim against defendants in judgment. We do not so understand the decision. The case there was this: The bank sued the defendant corporation by attachment, and caused the writ issued thereon to be levied on a lot of carpets. Four days later the plaintiff had judgment against the defendant corporation for the amount of their debt, and caused execution to be issued thereon, and requested the sheriff to levy the same upon the lot of carpets the bank had previously caused to be attached, free from the lien of prior writs, averring that their judgment was obtained for the purchase money of the goods thus ordered to be seized, and, hence, the execution was entitled to priority under the statute. The question was one of priorities, and it was held that the execution lien should have precedence over that of the attachment. As we understand the reasoning of the decision, it is based upon the theory that the inchoate lien of the seller of the goods has its inception in the sale in the contractual relation, and, when it is consummate in judgment and execution, that it takes effect and becomes operative by relation from the time of the sale as to the vendee and purchasers having notice of the existence of such prior claim. It would seem the holding in some respects is analogous to that in certain cases of mechanics’ liens, where it has been held that a contractor has no enforceable lien for several months after doing the work or furnishing the materials. Yet, upon taking the proper steps and maturing his claim, his rights relate back, and become a perfected lien, for all the time that has elapsed since the furnishing of the labor and materials. The law in many cases carries the preferences and priorities of the lien back to the time of its inception. Douglass v. Zinc Co., 56 Mo. 388; Hy. Press Brick Co. v. Bormans, 19 Mo. App. 664. There is, in our_opinion, nothing in Boyd v. Ward — 85 — Furniture, Stove and Carpet Co., which in any way conflicts with the ruling which we have made. EL The petition charges that the deed of trust was made in fraud of the creditors of the defendant Cohen who is the grantor therein. The plaintiffs, by this allegation, have suggested another insurmountable barrier to their rights of recovery. It shows that they had a complete and adequate remedy at law by attachment. R. S. 1889, secs. 521 (subdivisions 7, 8, 9, 10-14), 522; State ex rel. v. Mason, 96 Mo. 127; Parker v. Rodes, 79 Mo. 88. And the well-settled course of adjudication in this state is that injunction will not lie where a party has a complete and adequate remedy at law. Bailey v. Wade, 24 Mo. App. 186; Burgess v. Kattleman, 41 Mo. 480; Hopkins v. Lowell, 47 Mo. 102 ; Steines v. Franklin County, 48 Mo. 167; Demschroder v. Thias, 51 Mo. 100. In the view which we have taken of the case it is needless to consider the other points, so ably discussed, in the brief and supplemental argument of counsel. The judgment of the circuit court must be affirmed. All concur.-