Albert v. Van Frank

GOODE, J. We have already passed on the question of whether the bill of exceptions was filed in time, but the respondent has renewed it in his brief. We adhere to our previous ruling on the point. An appellate court is not restricted to the bill of exceptions itself to ascertain whether or not an order was made by the trial court extending the time in which it might be filed, as the respondent contends. It may look to the record outside of the bill for information as to what orders were made concerning it and when it was filed. State v. Thompson, 149 Mo. 439; Real Estate Ass’n v. Refrigerator Transit Co., 127 Mo. 499. But the original bill in this ease, which is before us, states explicitly, immediately over the signature of the judge, that it was filed within the time allowed. Nor do we find anything de hors the bill to contradict this recital. On the contrary, it is fully corroborated by the record. The time allowed for filing in the first instance was made in the order allowing the appeal on the thirtieth day of September, 1899. Sixty days from that date were granted. Afterwards, on the sixth day of November, the same being the sixth day of the term at which the cause was tried, the court extended the time to sixty days from that date. On the fifth day of January, 1900, and within the currency of the last order, the time was again extended by an order of the judge of the court, to thirty days. The filing occurred on the thirtieth day of [516] January, which was within the limit. The entire record is, therefore, before us for review. The so-called bill of sale made by the Dunlops to Albert, having been executed to secure or indemnify the latter, is a chattel mortgage. Johnson v. Houston, 17 Mo. 59; Wood v. Matthews, 73 Mo. 477; Quick v. Turner, 26 Mo. App. 29. As possession of the property did not accompany the instrument it was void as to every one except the parties to it. R. S. 1899, sec. 3404; Bank v. Bowers, 134 Mo. 432; Mercantile Co. v. Perkins, 63 Mo. App. 310; State v. Sitlington, 51 Mo. App. 252. The mere fact that the appellant had knowledge of its existence would not defeat his rights as a purchaser for a valuable consideration of the lien judgment prior to the time of its recording, nor of his purchase of the property at the execution sale thereunder. But he must have been an actual purchaser for himself, not an agent for Dunlop. The question to be determined, then, was, .whether Van Prank acted for himself in these transactions and bought for his own use and benefit, or whether they were for the fraudulent purpose of defeating the rights of the creditors of Dun-lop, and particularly the respondent Albert. The court submitted this question to the jury by the following instruction: “The court instructs the jury that if you find from the evidence that Van Prank bought the liverymen’s judgment with his own money and for his own use and benefit, and issued an execution thereon and bought the property in at a constable’s sale, then, the lien of the liverymen, Kage, Nichols & Kimmel, being better and superior to the bill of sale to Albert, Van Prank would, therefore, obtain the best title, and your verdict should be for him. But, on the other hand, if you find from the evidence that the purchase of the liverymen’s judgment by Van Prank was for the use and benefit of Prank H. Dunlop, and the same was to be kept open or executed in the interest [517] of Dunlop, and not for Yan Frank himself, then you are instructed that the constable’s sale was void and Yan Frank acquired no title and you should find for the plaintiff.” We deem the foregoing instruction unexceptionable. The appellant could not make either the justice’s judgment, which had' been assigned to him, nor his purchase at the execution sale a screen to cover up the property for the benefit of Dunlop and thereby prevent the plaintiff from utilizing his mortgage. Secret trusts and fraudulent contrivances of that character have been uniformly denounced by the courts. Irwin v. Wells, 1 Mo. 9; Pattison v. Letton, 56 Mo. App. 325; Bank v. Lime Company, 43 Mo. App. 561; Dry Goods Co. v. McLaughlin, 78 Mo. App. 578; Shanklin v. McCracken, 151 Mo. 587. We do not understand that the appellant’s counsel challenges the propositions of law declared in the instruction. His exception rests on the theory that there was no evidence on which to base it. But we take a different view. There was clearly evidence tending to prove that Yan Frank was acting for Dun-lop instead of himself; in fact, some tending to prove that Dunlop furnished the money for the purchase of the judgment. The relationship of the parties would not be sufficient in itself to avoid the transaction for fraud, but that circumstance was material, along with other evidence in the case, to establish the real motive on which the defendant acted. Implement Co. v. Ritchie, 143 Mo. 587; Farwell v. Meyer, 67 Mo. App. 566; Robinson v. Dryden, 118 Mo. 534. While the finding of the jury may not be the one which we would have reached on the whole evidence, it is not our province to disturb it. We can not say that it was so manifestly against the weight of the testimony that it must have been dictated by passion or prejudice. The instruction requested by the appellant and refused by the court was vicious, because, it did not submit to the jury the important inquiry, whether Yan Frank was a bona fide or [518] a fraudulent purchaser. It should be remarked that the court expressly instructed the jury the plaintiff could not recover any interest in the property owned by Mary C. Dunlop and that the verdict found Dunlop to be the sole owner. There was evidence to support this finding. The ease was tried without the commission of legal error and the judgment is affirmed. All concur.