State ex rel. Baumunk v. Goetz

Burgess, J. On July 25, 1893, and for sometime prior thereto, one Michael Kraemer was engaged in the business of constructing cement and granitoid sidewalks in the city of St. Louis. He then owned and had in his possession and employed in his business, a number of wagons, buggies, horses, harness, and a variety of tools necessary for its operation, as well also as cement, granitoid, and sand. In front of his place of business there was a sign, “German Cement Company.” ■ On the afternoon of the twenty-seventh day of July, 1893, the sheriff of the city of St. Louis, under writ of attachment sued out in aid of an action on a note brought by the defendant Charles W. Goetz against the said Michael Kraemer, levied upon and seized the said personal property. On the twenty-ninth day of July, George P. Baumunk, the relator herein, claimed the said property as his own, and thereafter, on the same day, the defendant Charles W. Goetz and his codefendants executed an indemnity bond and delivered the same to the sheriff of the city of St. Louis, and thereafter the said property was sold by the sheriff under an order of sale made by one of the judges of the circuit court of the city of St. Louis. This action is prosecuted by relator as the owner of the property on the indemnifying bond, he claiming [679] to have purchased the property from Kraemer on the twenty-fifth day of July, 1893. The petition contains the usual averments in such cases, alleging ownership of the property at the time of its seizure and sale by the sheriff under the writ of attachment, its value, etc. Defendants in their answer denied each and every allegation in the petition. At the conclusion of the evidence on the part of plaintiff, defendants interposed a demurrer thereto, which was sustained by the court and judgment rendered for defendants. Plaintiff appealed. We think it well settled in this state, that in case plaintiff’s evidence shows that he is prima facie entitled to recover, he is entitled to have his case go to the jury, and that under such circumstances it is error to sustain a demurrer to the evidence; but on the other hand it is equally as well settled, that if the evidence fails to show him prima facie entitled to recover, and a demurrer thereto is interposed by defendant, it should be sustained. As to the evidence in this case we shall have something to say later on. Relator insists that if defendants desired to show that the sale of the property and the bill of sale thereto from Kraemer to him was fraudulent as to the latter’s (Kraemer’s) creditors, and that he, relator, was a party to the fraud, it was the duty of defendants to have set up those facts by answer, and that the trial court should have so held. Even if this position be correct (which we by no means concede), the position in this case is untenable, for the very obvious reason that the court was given no opportunity to pass upon that question, and did not, in fact, pass upon it. No evidence was offered by defendants, and no point is made on any evidence elicited by them from plaintiff’s witnesses on cross-examination. There was no action of the trial court to which any objection was made and [680] exception saved which is urged before this court, and therefore nothing to be passed upon, with respect to the sufficiency of the answer. It was good until declared otherwise by the court. The question then recurs as to whether the evidence showed the sale to be fraudulent as to the creditors of Kraemer. There is no question as to his indebtedness and insolvency at the time relator claims to have purchased the property, but it is insisted by him that he was a bona fide purchaser and that under section 5178, Revised Statutes, 1889, he was entitled to a reasonable time after his purchase within which to take possession of the property, its nature and condition being considered, which was a question that should have been submitted to the jury, under proper instructions. What is “reasonable time,” is a question of fact when the evidence is conflicting as to the character and condition of the property, and the length of time necessary for its delivery, and it is only where the facts are undisputed, and the evidence substantially all one way, that it becomes a question of law. The undisputed’ evidence in this case is that Kraemer remained in possession of the property for two days after the sale to plaintiff before it was seized by the sheriff under the attachment, and that the same sign was kept up as before, although the property was of such a character that but a very short space of time would have been necessary for its delivery and such a change of possession as contemplated by the statute. In such circumstances it has been held that actual possession of the property must not only be taken within a reasonable time after the sale, but that the change when taken must be continuous, open, and notorious. Clafiin v. Rosenberg, 42 Mo. 439; Burgert v. [681] Borchert, 59 Mo. 80; Lesem v. Herriford, 44 Mo. 323; Stern v. Henley, 68 Mo. 263. In Wright v. McCormick, 67 Mo. 426, it was held that when it is shown from the undisputed facts in proof that the change of possession is not in compliance with the mandates of the statute, it should be declared fraudulent by the court as a matter of law. That case was followed and approved in Stewart v. Bergstrom, 79 Mo. 524. There was no such change of possession of the property in this case as required by statute and the court correctly held the sale to be fraudulent as a matter of law. Finding no reversible error in the record the judgment is affirmed. G-antt,P. J.,and Sherwood, J., concur.