Van Frank v. Walther

BLAND, P. L. Appellants, Albrecht and Rudolph Wal ther, who are furniture dealers, brought suit in the Gape Girardeau Court of Common Pleas against Frank H. Dun-lop for the purchase price of certain furniture sold and delivered by them to him for the refurnishing of his hotel. The petition was filed and personal service had on the third day of January, 1899. On .the twenty-seventh day of January, 1899, they recovered judgment for $381.93. An execution was issued on February 4th and levied a few days afterwards on the several articles of furniture sold to Dun-lop, which were described in the judgment and were clearly identified and pointed out to the sheriff. Upon this levy being made Philip R. Van Frank, who is the father-in-law of Dunlop, set up claim to the property and served on the officers a written, verified notice of his claim. Plaintiffs gave an indemnifying bond, whereupon Van Frank executed a forthcoming bond and retained possession of the property. The litigation out of which this appeal arises, was had upon the written claim of Van Frank, which was put in issue by plaintiffs in execution. Van Frank’s claim comes about in the following manner: On the fourth day of January, 1899, the day after the filing of plaintiff’s suit for the unpaid purchase price of the goods bought from them, Dunlop and wife executed a deed of assignment for the benefit of their creditors. The assignee named in the deed refusing to act, R. G. Ranney was appointed in his stead by the common' pleas, judge in [476] vacation. On the thirtieth day of January, three days after the Walther judgment was rendered, Ranney, the assignee, who is a practicing attorney and was present at the January term of the common pleas court, obtained an order to sell the assigned property. In pursuance of this order he sold, in lump, on February 3rd all of the property assigned to him, including the Walther furniture to Van Frank and executed to him a bill of sale, which forms the basis of his claim.” To the written claim of Van Frank the appellants filed an answer, denying each and every allegation of the written claim, and alleged specially the recovery of their judgment and the levy of execution on the furniture, for the purchase price of which the judgment was obtained, and that if the said Philip R. Van Frank, the claimant herein, pixrchased said goods, as set forth in his written claim, he did so with full notice and knowledge that plaintiffs’ claim for the purchase price was still unpaid, and that he is not an innocent purchaser for value; that the deed of assignment mentioned in the written claim of Van Frank was made by the said Frank H. Dunlop and wife for the fraudulent purpose and intent to hinder, delay and defraud these creditors of said Dun-lop, and that the said Philip R. Van Frank, who is the father-in-law of the said Frank IT. Dunlop, fraudulently counselled, advised and assisted in the making thereof with full knowledge of such intent and for the fraudulent purpose of aiding the said Dunlop in carrying out his said intent, and that he became the ostensible purchaser of said goods and chattels from the assignee fraudulently and for the use and benefit of the said Frank H. Dunlop and wife. The proof is that Dunlop was running a hotel at the city of Cape Girardeau; that he was largely indebted to appellants and others and was hopelessly insolvent; that respondent had purehas'ed the hotel building under a deed of trust prior to his purchase from the assignee. The assigned property was appraised at [477] $1,800. The assignee procured an order of the court to sell at private sale, provided he could obtain $2,500 for the assigned property; that respondent bought this property at private sale and paid $2,500 cash for it; that when the assignee took possession of the property and made the inventory and had it appraised he put it in the possession of respondent as his agent; that respondent is the father of Dunlop’s wife and that when he made the purchase from the assignee he had full knowledge that the furniture bought from appellants was not paid for. At the conclusion of the evidence the court instructed the jury that the sale by the assignee to Yan Frank cut off plaintiffs’ right to subject the furniture to execution, and directed the jury to find a verdict for Yan Frank. Appellants assign the giving of this instruction as error. There is no evidence in the record tending to show that the deed of assignment is fraudulent. The fact, if it be a fact, that Dunlop intended by the deed to hinder and delay the appellants in the collection of their debt, is not sufficient to prove fraud. To show fraud, the proof should go one step further and show that the assignee participated in the fraudulent purpose. There is neither. allegation nor proof of such participation. State to use v. Keeler, 49 Mo. 548; Hardcastle v. Fisher, 24 Mo. 70; State to use v. Adler, 97 Mo. 413; Crow v. Beardsley, 68 Mo. 435. Speaking generally an assignee succeeds only to the rights of the assignor and is affected by all the equities against him. Burrill on Assignments [4 Ed.], 391; Petit v. Spencer, 90 Mo. 844; State ex rel. v. Rouse, 49 Mo. 586; Huse v. Ames, 104 Mo. loc. cit. 98; Green v. Conrad, 114 Mo. 651. And this is so under section 365 Bevised Statutes 1899, which places the assignee in the shoes of a trustee in a deed of trust or attaching or execution creditor, provided he had notice of the equities against the assignor before or at the time of the execution of the deed of assignment. There is [478] conclusive evidence that Van Erank had notice of the fact that the purchase price of the furniture was due to appellants, and some evidence that the assignee also was affected with like notice. Appellants contention is that if both the assignee and Van Erank are affected with notice of appellants’ claim, their purchases are subjected to it under section 3170, Kevised Statutes 1899 (same as sec. 4814, K.. S. 1889). In order to maintain their position it mu,st be held that appellants had a lien under the statute for the unpaid purchase price of the furniture which they can enforce against the respondent, who with his grantor had notice of the lien. The latest authoritative decisions of our supreme court construe the statute to be one of exemptions only, and not one creating a lien in favor of a vendor of personal property. Barton v. Sitlington, 128 Mo. loc. cit. 177; Straus v. Rothan, 102 Mo. 261; Brownell & Wight Car Co. v. Barnard, 116 Mo. 667. Having no lien appellants had no foundation on which to base their claim, and the judgment is affirmed. Judge Bond concurs; Judge Biggs absent.