Scully v. Albers

ELLISON, J. Plaintiff sued the defendant by attachment for rent. The interpleader filed his claim for the property attached and on trial thereof he obtained judgment. There is much of plaintiff’s case, as presented in his brief and argu [120] ment, that can not be considered, as no exceptions were taken and preserved. It appears that interpleader obtained the property attached by purchase from his mother, while they were residing together, he being in her employ on the farm at a stated price per month. Plaintiffs principal point is that there was no sufficient change of possession to make a valid sale as to third parties. And in this connection he objects to certain amendments made to his instructions on. this subject. The amendment consisted in interlining that in passing on the question of change of possession the jury should have regard to the situation of the parties and the surrounding circumstances. These words undoubtedly have reference to the fact that the parties were mother and son and were living on the same premises, and that necessarily the change of possession would not be so apparent to the world as if the property had been removed to some other locality. We think the peculiar circumstances of the case made these changes- in the instruction proper. So, likewise, it was not error for the trial court to add to plaintiffs other instruction a proper definition of the word “preponderance,” as used by plaintiff. But on the question of change of possession from the mother to the son, it is shown by the evidence that when the goods were attached, interpleader had taken them from the premises and was in the act of shipping them out of the State. Now it has been recognized as the law in this State since the opinion by Hall, J., in McIntosh v. Smiley, 32 Mo. App. 125; s. c., 107 Mo. 37, that though there was no change of possession at the time of sale, as required by law, yet if before the levy of the attachment (and there be no intervening rights of third parties) the vendee takes actual possession, the sale is good. See also Tooney v. Goodley, 57 Mo. App. 242. [121] We have gone over the whole record and do not discover any error in the proceeding at the trial and therefore affirm the judgment. All concur.