Armstrong v. Tuttle

Dryden, Judge, delivered the opinion of the court. There is nothing in this case to distinguish it in principle from Brooks v. Wimer, 20 Mo. 503; Walter v. Wimer, 24 Mo. 63; Martin v. Maddox, 24 Mo. 575; Stanley v. Bunce, 27 Mo. 269. Renth and wife were carrying on the business of milliners in St. Louis, and having become indebted to the appellant Tuttle, and the debt having become due, they got an extension of the time of payment three, six, nine, and twelve months, they conveying their stock in trade and fixtures in their store to the appellant Smith, in trust as security for the debt. The deed expressly reserved to the grantors the right [445] to remain in possession of tlie property thereby conveyed, for the purpose and with the right of using and selling the same in the regular and usual course of their said business, until the happening of some one or more of the contingencies in the deed specified, but without any accountability to any one for the proceeds of the sales made in the mean time. The deed, so far as it affected the stock in trade, was a conveyance in trust to the use of the grantors, and it was the duty of the court to declare it void as to the respondents if creditors, under the 1st section of the act concerning fraudulent conveyances. As decided in Stanley v. Bunce, a deed may be good in part and bad in part; and if it be conceded, as the appellants contend under the authority of that case, that the fixtures conveyed in the deed in this case were not in trust to the use of the grantors, because they were not intended by the parties to be embraced within the reservation of the power of sale, still the respondents’ first instruction declaring the deed void was not erroneous. The instructions of the court ought to be shaped with reference to the issue under trial and the evidence bearing upon it. In this case the only property the ownership of which was involved in the issue was the stock in trade. The deed being offered as evidence, it was the duty of the court to declare its legal effect as bearing upon the issues, but not as to any matter foreign to the issues. In any view we can take of the case, the respondents’ first instruction was properly given. The refusal of the appellants’ eleventh instruction, as follows, is urged as a further ground for the reversal of the judgment, viz : “ If the jury believe that before either of said garnishees was summoned in this cause, and at the time of issuing the execution herein, said ¥m. Renth was indebted to said Tuttle, and that any money or property of said Renth had come into the possession of said Tuttle or his agent with the consent of said Renth, and for the purpose and with the understanding on the part of said Renth and said Tuttle that such money or prop [446] erty, or the proceeds thereof, were to be applied as a credit on said Renth’s indebtedness aforesaid; and further believe that such receipt and application were bona fide, and not with an intent to hinder or delay other creditors of said Renth, so far as Tuttle knew or assented to, then the jury are instructed that the receipt and possession of such money, property or proceeds, with the bona fide intention and understanding aforesaid, does not constitute an indebtedness on the part of said Tuttle to Renth; nor can the said plaintiffs recover in this action for any such money or property, or proceeds thereof, unless they have proved that the amount or value of the same exceeded the entire indebtedness of Renth to Tuttle, to which it was so to be applied, and in any case can only recover the excess so proved to an amount not exceeding the sum due or the judgment in favor of the plaintiffs against Renth.” A prime objection to this instruction is that there was no evidence in the case on which to base it. The effect and operation of the deed upon the property in dispute was, as we have seen, a question of law for the court, andrhad already been passed upon and the instrument declared void. Aside from the deed, there was nothing in the case showing, or tending to show, any agreement or understanding whatever between Renth and Tuttle in regard to the property; and the attempt to induce the jury to find a verdict on the supposed understanding between Renth and Tuttle was but an ingenious device to make a void deed answer the purpose of a valid one. The appellants came into possession and claim the property in controversy under the conveyances from Renth, as is shown as well by their pleadings as by the evidence in the case, and with it they must stand or fall. No error is found in the record. Let the judgment be affirmed; Judge Bay concurring.