Toovey v. Baxter

Ellison, J. Plaintiff began a suit by attachment against one J. W. Crofford, and had the writ levied upon a stock of merchandise. This stock was after-wards, during the pendency of the suit, sold by order of the court as being perishable property. R. C. Bax [474] ter purchased the goods at this sale. Afterwards he filed a bill in the cause, styled by the parties as an interplea, in which it is set up that the debt sued for was the individual debt of Oroiford, and that the property attached as Crofford’s was, in fact, the partnership property of himself and Oroiford. That the partnership was indebted to various partnership creditors in amounts stated, and prays the court to order the money distributed to the partnership creditors first and that one-half of the balance be paid over to him. There was an answer filed to this bill in which there was, in addition to a general denial, a plea of estoppel against the interpleader, in that since he had purchased the goods at the sale aforesaid, he should not be allowed to claim any of the proceeds of the sale. The theory of the answer being that by purchasing at the sale, interpleader had recognized the goods as being the individual property of Oroiford, the defendant in the attachment. The principle upon which plaintiff relies as to estoppel does not apply to the facts of this case. The goods, when attached, became in custodia legis, and and when ordered to be sold by the court during the pendency of the suit, were not sold as the property of defendant or anyone else, but as property in the hands of the court which the court wished to be transformed into money, the money taking the place of the property. The property is not sold as the property of anyone; and a purchaser at such sale does not recognize or affirnj. the title of anyone. He merely obtains a title founded upon the order of court which, having the property in possession and having jurisdiction, orders it sold, thereby conveying a good title to the purchaser, even though the defendant in the attachment had no title.' In such purchase merely, there is no act of the purchaser at a sale of the peculiar nature of this upon [475] which an estoppel can rest. Franke v. Eby, 50 Mo. App. 579. Interpleader- does not claim through any title, of the defendant in the attachment suit, and consequently the principle invoked by plaintiff is inapplicable. Gilkinson v. Knight, 71 Mo. 406. It seems that the evidence disclosed that inter-pleader’s wife had also an interest in the goods attached, which was managed by interpleader, as her agent, the interplea being in his name only, and objection is now taken based on this ground. The objection is out of time. For any defect of parties, objection should have been entered during the progress of the trial. The objection here made to instructions given for interpleader do not raise such question. Objection is taken to the action of the court in permitting interpleader’s wife to testify as a witness. The objection was properly overruled. Under section 8918, Revised Statutes, 1889, no one is disqualified as a witness by reason of being interested as a party or otherwise. This would enable Mrs. Baxter to testify, so far as her being interested is concerned. The fact that her testimony also inured to the benefit of her husband will not render it incompetent. Steffen v. Bauer, 70 Mo. 399. See, also, as to the competency of the wife, Tingley v. Cowgill, 48 Mo. 291; Fugate v. Pierce, 49 Mo. 441; Owen v. Brockschmidt, 54 Mo. 285; Wilcox v. Todd, 64 Mo. 388; Harriman v. Stowe, 57 Mo. 393. Objection was made to the competency of Mrs. Crofford as a witness on the ground that she, though divorced at the time of the trial, was formerly the wife of' Crofford,* the defendant in the attachment. The court ruled that she was competent, except as to any communications between herself and defendant while the marital relations existed. We think this ruling was correct. We can discover no reason why a woman who has formerly been the wife of one of the parties [476] to a cause should be disqualified as a witness with the exception stated by the court in the ruling made. A careful examination of the record has satisfied us that there was no error committed by the court materially affecting the merits of the action, and we must, therefore, affirm the judgment. R. S. 1889, sec. 2303. All concur.