Brownell & Wight Car Co. v. Barnard

Bkace, J. an action upon a promissory note for $2,780, instituted in the Johnson county circuit court by the said Brownell & Wight Car Company, the defendants in this issue, against the makers thereof, Prank Barnard, J. B. Wood, Prank Wood, and M. P. Doud, ¡a writ of attachment upon statutory grounds was issued, returnable to the -October term, 1890, of said court, in aid of the action and on the eleventh day of June, 1890, levied upon four street railway cars. At the ensuing October term of said court, and on the twenty-first day of October, 1890, Gleorge W. Colbern, the plaintiff in this issue, interpleaded in said action, •claiming the said street* railway cars as his property. [671] Afterwards at the February term, 1891, of said court, the said defendant company filed a motion to dismiss said interplea on the ground that no notice had been served upon it within the time required by the rules of said court; which motion was overruled, and exceptions saved to this action of the court. On the first day of June, 1891, the issues upon the interplea came on to be tried before a jury. It appeared from the evidence, that the promissory note sued on was given for the purchase money for the railway cars, upon which the writ of attachment was levied; that they were sold by the defendant to the said Doud, Woods and Barnard, and by them sold and transferred with other property by deed to the Electric Springs Railway Company, a corporation duly incorporated under the laws of this state. Afterwards the said railway company, by its mortgage deed, conveyed the said cars, together with its other property and franchises, to Theodore Youngs in' trust to secure the payment of twenty-six first-mortgage bonds of $500 each, issued by said company on the fifteenth day of November, 1889, bearing interest at the rate of six per cent, per annum, payable semi-annually, with power of sale upon default in payment of principal or interest or any part thereof. Afterwards these bonds were pledged to the Johnson County Savings Bank as collateral, to secure an indebtedness of said company to said bank on a promissory note of $7,200, payable in sixty days with power to sell said bonds in ease of default in the payment of said note. The company having made default in the payment of said note, the bonds were sold to the interpleader, plaintiff herein, and the company have also made default in the payment of the interest on said bonds, the said cars and other property conveyed to the said trustee were sold in pursuance of the power and according to the terms [672] of said deed of trust, at public sale to tbe highest bidder, and the plaintiff became the purchaser thereof; and afterwards received a deed from the trustee conveying the same to him. There was also evidence tending to prove that the plaintiff had notice at the time of his purchase that'the purchase money due the defendant for said cars remained unpaid. At the - close of the evidence the court instructed the jury to return a verdict for the plaintiff, which was accordingly so done, and from the judgment rendered thereon in his favor, the defendant appealed. I. By a rule of the Johnson county circuit court, interpleas in eases of attachment are required to be filed ‘ ‘within the first two days of the term to which the writ is returnable, and#shall be triable thereat, and before the issue on any plea in abatement;” and that “notice of all interpleas shall be served by the inter-pleader upon all parties to the cause or their attorneys, within three days' after the filing thereof, unless longer time be granted by the court. The failure to make such service shall entitle the parties opposing the interplea to an order dismissing the same. The plaintiff filed his interplea within the time required by the rule at the October term, 1890. But no action was taken upon it until the next ensuing February term when defendant moved to dismiss the interplea for want of notice of the filing. The court heard evidence pro and con on this motion, overruled it, and the case was continued to filie next (June) term, when the issue was tried. The rule was made for the purpose of expediting the trial of such issues, and not for the purpose of depriving the interpleader of his legal rights. The motion to dismiss was addressed to the discretion of the trial court, and its ruling thereupon not shown to have been prejudicial to the defendant’s rights, will not be reviewed. [673] II. Counsel for the defendant urge for reversal that the trial court committed error in admitting evidence: First, certain ordinances of the city of Warrens-burg, granting a right of way to lay a street railway in said city to Doud and Woods and the Electric Springs Railway Company; second, the trust deed from the Railway Company to Youngs; third, the bonds secured by the deed of trust and the note for $7,200, executed by the Railway Company to the bank, and fotirth, the trustees deed from Youngs to the plaintiff. As to the first error assigned, it must be conceded that the ordinances were wholly irrelevant to the issue, and ought upon the defendant’s objection to have been excluded, but their admission in no way tended to prejudice the defendant’s case. As to the second, the mortgage or trust deed was duly executed under the seal of the company, signed by its president and attested by its secretary, duly acknowledged and-recorded, was admissible in evidence and prima facie sufficient to show transfer of title to the cars to the trustee. Hamilton v. McLaughlin, 145 Mass. 20; Missouri Fire Clay Works v. Ellison, 30 Mo. App. 67; Musser v. Johnson, 42 Mo. 74. The bonds were in like manner executed under the seal of the company, signed in the same way as the deed, by its proper officers and were prima facie evidence of an indebtedness of the company according to their tenor and effect, as was also its promissory note to the bank, and for that purpose were admissible in evidence. In the absence of any proof to the contrary it will be presumed that they were issued in accordance with the requirements of the statute, in an issue between a Iona fide purchaser for value, and one having no interest and claiming no right under the corporation— a stranger in fact and in interest to the transaction. [674] This suit was evidently commenced and prosecuted under the mistaken idea that a vendor who makes an absolute sale of personal property and delivers possession thereof to the vendee, still retains some sort of a lien upon the property for the unpaid purchase money. It is only upon some such theory that any of the defendant’s objections to the plaintiff’s evidence of title could have been sustained. This theory was thoroughly exploded by the decision in the case of Straus v. Rothan, 102 Mo. 261, which is decisive of the case in hand; for when the defendant levied its writ of attachment, its debtors Barnard, Woods and Doud had no interest whatever in the property, having before that time parted with all they ever had, in good faith, and the defendant, by the levy, acquired none. The interplea in this case, in the absence of evidence showing any further right to the property than that acquired by the levy, could have been sustained by simply showing that the plaintiff was in the peaceable possession of the property at the time the levy was made. It appears by the record that at one time the counsel for the plaintiff started to make this proof, but by the ingenuity of counsel for the defendant, he was “shunted from the track.” What Has been already said applies to and answers the objections made to the introduction of the trustee’s deed to the plaintiff. It was sufficient, prima facie, to convey title to the property. Any irregularity there may have been in the execution of the power can only be inquired into by those having some interest in the property. The judgment is for the right party and is affirmed. All concur, except Barclay, J., absent.