Martin v. Rice , 24 Mo. 581 ( 1857 )

Rylato, Judge,

delivered the opinion of the court.

The first deed offered, dated 20th November, 1854, by IToit to Martin, is admitted to be fraudulent on its face. The provision that the said Hoit should keep possession of the goods and property mentioned in the deed, and should sell and dispose of the same in the usual course of business, without being accountable to any person for the proceeds of the goods in the mean time, is unqestionably a vice that renders this deed fraudulent and void as to creditors.

The subsequent deed did not cure this vice. There is nothing attempted to be conveyed by it. It recites the obnoxious provision in the first deed, and then proceeds to release and relinquish unto the said Martin all the rights and privileges reserved to Hoit by the said provision in the first deed — “ so that he may at any time when he shall see fit seize and take possession of said property, or any part thereof, wherever he may find the same.” Now there is not the slightest evidence here that Rice, the plaintiff in the execution under which Maddox seized the goods in controversy, ever assented to these deeds of trust. The first deed being fraudulent against creditors, let us see if the second deed has cured the fraud. Without pretending to determine what would be the effect of a second deed upon a prior one, if the second had been so made as to be itself without objection, yet in this case the second deed does not cure the vice in the first, being itself vicious. This second deed does not alter the relations of Hoit and Martin. The deed does not pretend to convey the goods to Martin for the creditors of Hoit; it simply releases his (Hoit’s) rights reserved by the provision of the first deed, and leaves it at the option or discretion of Martin to take the goods into his possession whenever he may see fit. How suppose Mr. Martin, a clerk in the employment of Hoit, does not see fit to take the goods, then Hoit proceeds to keep possession and sell on in the usual course of business : the second deed does not cure the defects of the first, and that being fraudulent and void as to all creditors not assenting to it and affirming its provisions, and Rice, plaintiff in the execution under which Maddox seized the goods, never having assented thereto, it is void as to him, and the plaintiff below was properly non-suited. Let the judgment therefore be affirmed ;

Judge Scott concurring ; Judge Leonard absent.