Anderson v. Berry

CAULFIELD, J. (after stating the facts).— Plaintiff contents himself on this appeal with an assertion that the judgment is against the law and the evidence. With this we are unable to agree. The case resolved itself into the single question whether the sale by Dudley Shaw, to plaintiff’s mortgagor, was accompanied by such delivery and followed .by such change of imssession as would prevent it being-held to be fraudulent and void as against the creditors of the vendor under section 2887, of the Revised Statutes 1909. The trial court correctly declared the law, and upon conflicting evidence found against the plaintiff on the fact. With nothing to indicate passion, partiality or prejudice on its part, we are concluded by its finding. [Huggins Cracker & Candy Co. v. Ellis & Co., 45 Mo. App. 585.] It is immaterial that the attaching creditor had notice of the alleged sale. [Gilbert Book Co. v. Sheridan, 114 Mo. App. 332, 89 S. W. 555.] Nor does it render the sale any the less fraudulent and void as against creditors of the vendor that the vendee has undertaken to secretly mortgage the property without any delivery or change of possession being had from the original vendor. The purpose of the statute is to prevent secret dispositions of property by an owner, which may be used to screen his means from legal process in behalf of creditors. [Grand Avenue Bank v. St. Louis Union Trust Co., 135 Mo. App. 366, 115 S. W. 1071.] If the necessity for delivery and change of possession could be dispensed with by the vendee making a secret conveyance or mortgage, the statute would be nugatory and might be eluded at any time with impunity. [Lesem et al. v. Herriford, et al., 44 Mo. 323.] The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.