Bevans v. Bolton

Bates, Judge, delivered the opinion of the court. This case was heretofore submitted to the court, and an opinion prepared, but no judgment entered. The parties now agree that the opinion shall be filed, and stand as the decision of the court. Therefore, in accordance with that agreement, and the opinion of Judge Napton, in which Judge Ewing concurred, the judgment below is affirmed, the other judges concurring: Napton, Judge. The principal ground upon which the defence in this case rests, is the fact that the deed of trust executed to the plaintiff was not recorded in St. Louis county until a few days after the executions in favor of the defendants were placed in the hands of the officer. The grantor and grantee in the deed, and all the beneficiaries, as well as the defendants who sued out the execution upon their judgments in St. Louis, all resided in Pike county at the time of the execution of the deed, in August, 1858. It was recorded in that county the day it was executed, and in Audrain county, where a portion of the lands lay, a few days afterwards. In the latter part of October, Kincaid, the maker of the deed of rutst, removed — 443 — from Bowling Green to St. Louis, intending, it would seem, to return to Pike county the ensuing year, and take with him the negro girl sued for, with the consent of the grantee, the plaintiff in this case. The defendant, who lived also in Bowling Green, came down to St. Louis, shed Kincaid before a justice, obtained judgment, and levied.on tho slave. Our statute requires a mortgage or deed of trust of personal property where the possession is retained by the grantor, to be recorded in the county in which the grantor resides. This was done in the present case, and the statute was, beyond doubt, literally complied with. Whether the removal of Kincaid, the grantor, to St. Louis with the property, would subject it to the execution of creditors there unless recorded in that county in time, is a question it is not necessary to determine. Certainly the bare removal of the grantor with his slave to St. Louis could not in any 'sense prejudice the creditors who lived in Pike county, where the deed was made and recorded. We mean, of course, a removal which was not attended with any circumstances calculated to excite a suspicion of fraud, and it was not pretended in this case that Kincaid’s removal to St. Louis had the most remote reference to any design upon his creditors. The creditors in Pike county could certainly not be benefitted by recording the deed in St. Louis county; the statute does not in terms require the deed to be recorded anywhere else but in the county where the grantor resides. The deed is absolutely invalid against a creditor or purchaser if it is not recorded, although such creditor or purchaser may have actual knowledge of it. (Bryson v. Phœnix, 18 Mo. 13.) The statute is imperative in requiring the deed to be recorded, or the possession of the property conveyed to be transferred, and all questions of actual notice are purposely avoided. It is not positively required to record the deed a second time or at a second place; that may or may not be inferred. But when we fall upon a case where the object of the act will be defeated by allowing a removal of the grantee and the property animo manendi, and a failure to record at the place — 444 — of removal, then we may also look to the question of actual notice, and we see at once that if we were disposed to go beyond the strict requirements of the act, and hold it necessary to record in St. Louis county after the removal of the grantor there, we could not, with any propriety, apply the rule to a creditor living in Pike county, where the deed was made and recorded, and where the suit was brought; so that whether we adopt the construction of a like statute in Massachusetts (Bingham v. Weaver, 6 Cush. 299), or not, the result in this case would be the same. It has been argued that the deed to Bevans, the plaintiff, is void on its face, but we have not been able to see any plausible ground for this assertion. The deed is to be construed as allowing the grantor to retain possession of the personal property. That circumstance does not make it void; for the failure to change the possession is prevented from affecting the validity of the deed by recording it. It is also said that there was no power of sale given the trustee; he was “ authorized and empowered to superintend and see to the disposal of, the said personal property, that the proceéds may go towards liquidating and satisfying the aforesaid notes,” &c. So far as the title of Bevans was concerned, it is not material whether the instrument be regarded as a mortgage or a deed of trust; nor is an express authority to sell of any consequence to its validity. It is sufficient that the legal title is conveyed for purposes which were legitimate. If the defendants bought an equity of redemption, the plaintiff is nevertheless entitled to the possession for the purpose of executing his trust. But, in fact, as the evidence shows, the property was altogether insufficient to pay the debts designed to be secured. The instructions asked by the defendants were properly refused ; several of them were on the subject of actual fraud. There was no evidence of any actual fraudulent design on the part of any of the parties to the deed; the answer did not allege any. Judgment affirmed.