Blount v. Hamey , 43 Mo. App. 644 ( 1891 )

Smith, P. J.

This was an action of replevin to recover the possession of a span of mules. The evidence adduced at the trial tended most- strongly to show that plaintiff was the- owner of two young and unbroken mules ; that Henry Blount, a son of plaintiff, took the mules to break and use .until the plaintiff should want them; that Henry took the mules to his own place, and then broke and used .them for five or six years and until his death in 1888 ; that several witnesses testified to statements made by Henry to each of them at various times and up to within a few months preceding his death to the effect that the mules were the property of the plaintiff. This is not contradicted by any other testimony. It seems that after the death of Henry, and on the day of his burial, the plaintiff had a conversation with James Shephard, who afterwards became the administrator of Henry’s estate, in which she remarked, “Mr. Shephard, you know I have a pair of mules at Henry’s,” and he replied, “ Yes.” She then said, “ Will you take the mules over to your place, fix them up, sell them for me, and I will pay you whatever is right for your trouble?” Shephard said he would do that after the corn was gathered at Henry’s place. Subsequently Shephard, becoming administrator of Henry Blount’sestate, listed the mules in his possession and sold and delivered, them to the defendant as the property of said estate. Plaintiff had judgment in the trial court, and defendant appealed.

I. The statute in relation to fraudulent conveyances, section 5173, Revised Statutes, 1889, provides that when any goods or chattels shall be pretended to have been loaned to any person with whom, or those claiming under him, possession shall have remained for the space of five years without demand made, and pursued by due process of law on the part of the pretended lender, or when any reservation or limitation shall be pretended to have been made of any use of property, by way of condition, reservation or remainder, or otherwise, in goods or chattels, the possession whereof shall have remained in another, the same shall be taken, as to 'all creditors and purchasers of the person so remaining in possession, to be void, and that the absolute property is with the possession unless such loan, reservation or limitation of use of property was-declared by will or deed in writing, proved or acknowledged and recorded as required by section 2499. ■

The death of Henry Blount, the loanee of the property, operated as a revocation of the loan. Story on Bailment, sec. 277, The evidence shows that the plaintiff, by her agent Shephard, took possession of the property so that it was never lawfully in the possession of the administrator. His possession, and that of his vendee, was tortious. But, however this may be, the defendant purchasing at the administrator’s sale was in no sense “a creditor or purchaser of the person so remaining in possession.” This statute cannot for that reason be invoked by the defendant to uphold his claim to the property. The cases cited by the defendant: Cook v. Clippard, 12 Mo. 245; Nyson v. Rogers, 24 Mo. 192, were where the loanee had sold the property, and the controversy respecting the title was between the loaner and the purchaser from the loanee. The defendant is not a purchaser from the loanee, and, therefore, can derive no protection from its provisions. Even if the loan was void under the statute the defendant, being neither a creditor nor a purchaser of Henry Blount, is in no situation to controvert plaintiff’s title. The property at the death of Blount was still a loan, and did not become assets of his estate to which his administrator was entitled. Smoot v. Wathen, 8 Mo. 524; Criddle's Adm'r, v. Criddle, 21 Mo. 522. There is not the slightest evidence that the deceased claimed the property adversely to the plaintiff; on the contrary the evidence is overwhelming that he did not.

The plaintiff’s right to the possession of the property as against the defendant did not depend upon whether she had the possession after the death of Henry Blount or not. The defendant is in no better situation than the administrator as respects the title to the property — the latter had no title to pass to defendant by sale. The mules in controversy were not assets in the hands of the administrator within the well-established meaning of that term. Assets consist of all those goods and chattels which were of the deceased in right of action or possession as his own and so continued to the time of his death, and which after his death the administrator gets into his hands as duly belonging to him in right of his administratorship. Williams on Executors, 1656. How can the defendant claim the benefit of the statute, when he is not within its terms, being neither a creditor of the loanee during his lifetime, nor of his estate, nor a purchaser of him % The death of Henry Blount put an end to the relation of bailor and bailee. It extinguished the bailment. There wTas neither bailor nor bailee. There is no such thing as the relation of bailor and bailee being created between plaintiff and the administrator by operation of law. Before the statute can apply in any case there must ex necessitate rei be a bailee in whose possession the property loaned is, and then there must be a creditor or purchaser claiming some right thereto through the bailee, and if these conditions are wanting it is quite difficult to see how the statute has any application,.however liberally it'may- be construed. The relation of bailee, and bailor was not only extinguished by the death of Henry Blount, but the evidence, as has already been stated, shows that the property in controversy was taken into possession by the plaintiff, and was constructively in her possession when purchased by the defendant. The defendant bought the mules at his own risk. He must be presumed to have known that the rule of caveat emptor was applicable to the sale. Benj. on Sales, sec 640, note K; Hensley v. Balter, 10 Mo. 157.

There was, therefore, no error in the rulings of the court below in respect to the giving and refusing instructions. The defendant contends that the court erred in rejecting his offer to prove that the deceased while in the actual possession of the mules claimed to hold them as owner. We cannot see that the rejection ol this offer was injurious to the defendant, in view of the concurrent testimony of nearly all the witnesses to the fact that he again and again declared that the property was that of plaintiff, and that he was using it, and in possession as a loanee. Such declarations of deceased, if proven, would have very little, if any, probative effect to destroy the declarations he had made to the witnesses against his interest. The declarations of a party may in some cases be received in evidence- to characterize his possession of property. So, too, the declarations of a party in possession of personal property against his title are admissible, but declarations by him on other occasions, in support of his title, are not admissible, even in rebuttal. Criddle's Adm'r v. Criddle, 21 Mo. 522.

No error is perceived in the record materially affecting the results. The judgment should be affirmed.