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Poplin v. Brown.

absolute in form and placed in the hands of the grantee was not delivered as a present conveyance of title but for some other purposes. The plaintiff must bring suit in equity to have such conveyance declared void. Most of the cases on this subject deal with the conveyance of land and, since land can be conveyed only by written instruments and the legal title to land is determined by the written conveyances, where there is a deed absolute in form, and of record, or in the hands of the grantee as a muniment of title, a proceeding in equity is generally necessary and the one resorted to in order to destroy defendants apparent legal title. If, however, the desired result can be accomplished in an action of law, as in ejectment, for instance, as is the case of Black v. Sharkey, 37 Pac. 939, supra, the same rules as to admissibility of evidence are applicable. The present case involves a conveyance of personal property by an ordinary bill of sale and we do not think that in order to determine title to personal property the defendant must resort to equity in order to cancel and have declared void the bill of sale purporting to vest title in plaintiff. The bill of sale of personal property is not such a muniment of title in plaintiff as requires a suit in equity to have it declared void before defendant can recover such personal property in an action at law. The title and transfer of personal property is accomplished by sale and delivery and need not be evidenced by a bill of sale or other writing. [Kendall Shoe Co. v. Bain, 46 App. 581, 591; Garzweiler v. Morgner, 51 Mo. 47; Cunningham v. Ashbrook, 20 Mo. 554; Greer v. Lafayette Co. Bank, 128 Mo. 559, 30 S. W. 319.] Parol evidence is admissible in a suit at law involving personal property to show the purpose of giving a bill of sale thereof and the real character of such conveyance, King v. Greaves & Ruff, 51 Mo. App. 534. Whether a claimed transfer of personal property is void or voidable is generally determinable in an action at law without resorting to equity and the fact that such transfer is evidenced by a bill of sale does not change this rule. In Brewing

Poplin v. Brown.

Co. v. Steckman, 180 Mo. App. 320, 326, 168 S. W. 226, the court stated:

"If defendant's claim is that the property was hers by gift, it may, or may not, have been such character of gift as would be fraudulent and void as to creditors, in law as well as in equity and could be tried as an ordinary action at law; and such is the accepted mode of trying such cases, notably in actions by attachment, replevin and other instances."

The validity and binding effect of the bill of sale no more necessitate a resort to a court of equity to remove same than would a written release of claim for damages and it is now the settled law of this State that the validity of such a release whether procured by fraud, false representation and promises, duress or mental incapacity may be inquired into in an action at law and tried by jury, and this is true independent of any statute. [Courtney v. Blackwell, 150 Mo. 278, 51 S. W. 668; Berry v. Railroad, 223 Mo. 358, 370, 122 S. W. 1043.]

It was therefore competent for plaintiff to prove that the bill of sale of this automobile, though given into the defendant's possession, was not so given as a conveyance in praesenti or as vesting the title absolutely and unconditionally in plaintiff; but that same was for exhibition to a third party and not to have such effect until and unless a valid deed to the Barry County land was delivered to defendant together with an abstract showing a merchantable title. This was an issue for the jury on which evidence direct and circumstantial was admissible. The evidence admitted and afterwards stricken out was competent on this issue, and most if not all that offered should have been admitted.

If it be necessary that the element of fraud be present in order to let in such oral evidence, then such element is presented by the pleading and evidence here. If plaintiff procured the possession of this bill of sale under the pretext that he wanted it "to show that there was a deal on," agreeing that he would merely hold it till the title was investigated and return or de

Poplin v. Brown.

stroy it if the title proved defective, and after so getting it demanded the automobile regardless of the title to the land, his procurement of the bill of sale was fraudulent. The facts stated in the answer and supported by the defendant's evidence spell fraud whether the pleader pronounced it that or not. Stating the facts is all that is required in a pleading and the law gives it the proper name and effect. We are not saying that defendant's version of the matter is true but only that it cannot be disregarded.

The question of the actual or constructive delivery of the automobile to plaintiff at the time of the manuel delivery of the bill of sale is not vital but has a bearing on the above issue. Plaintiff could maintain replevin on the bill of sale as a symbolic delivery without actual delivery, provided of course the intent was to have the bill of sale vest title at once and unconditionally and provided plaintiff had complied with the conditions necessary to vest title in him before this suit was instituted. [Glass v. Blazer Bros., 91 Mo. App. 564; Erwin v. Arthur, 61 Mo. 386; Boutell v. Warne, 62 Mo. 350, 353.] Plaintiff, however, never took actual possession of the automobile. It remained in the garage where defendant had been keeping it till taken by him to another one for repair. The garage man was defendant's bailee and remained such unless agreed otherwise. This also was largely a matter of intent-not a secret one but one evidenced by and consistent with the physical facts. There is no evidence that the bailee was ever informed of any sale of the automobile, much less that at any time defendant instructed the bailee to turn the automobile over to plaintiff or hold it for him, as was true in the cases relied upon by plaintiff. [Clubb v. Scullin, 235 Mo. 585, 139 S. W. 420; Allgear v. Walsh, 24 Mo. App. 134.]

The defendant's evidence is to the effect that plaintiff was to furnish an abstract of title showing not only a good merchantable title but one pronounced such by his attorney. While such a contract, if so made, is valid it must be carried out in good faith both by the

Poplin v. Brown.

defendant and the attorney selected to examine the title. It does not give defendant a right to select an attorney who arbitrarily and without just reason calls the title defective. We also call attention to what is said in St. Clair v. Hellweg, 173 Mo. App. 660, 159 S. W. 17, as to the duty of the examiner of the title to point out the objections to the title and afford a reasonable opportunity to have them corrected.

Defendant invokes the Statute of Frauds. That this contract for the sale and exchange of the automobile for the land, so far as same is executory, is within the Statute of Frauds is not questioned. [Beckmann v. Mepham, 97 Mo. App. 161, 70 S. W. 1094; Sursa v. Cash, 171 Mo. App. 396, 156 S. W. 779] If plaintiff's theory, however, is correct that the bill of sale was delivered to him as a present conveyance with actual or constructive possession of the automobile and that he in turn conveyed the land to plaintiff and that was all there was to do, then the contract was fully executed by both parties and the Statute of Frauds has nothing to do with the case. [20 Cyc. 302; Rich v. Donovan, 81 Mo. App. 184; Maupin v. Railroad, 171 Mo. 187, 199, 71 S. W. 334; Taylor v. Penquite, 35 Mo. App. 389, 400.] We do not know just what phase of this question may arise on another trial. It would seem, however, that unless the bill of sale was made and delivered as a present conveyance of the automobile, as distinguished from an instrument given him to exhibit to a third party to show that a deal was in progress, then the contract to sell the automobile or exchange it for land is void under the Statute of Fraud for want of a written memorandum thereof, signed by the party to be charged.. The bill of sale under such circumstances does not serve such purpose because not executed and delivered as such. [1 Devlin on Real Estate, section 273; Cash v. Clark, 61 Mo. App. 636.] Nor does such bill of sale contain all the essential terms of the contract.

The result is that the case is reversed and remanded. Farrington and Bradley, JJ., concur.

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JOHN SPEER, Appellant, v. THE HOME BANK OF FOREST CITY, Respondent; W. H. RICHARDS, MARTIN GRAHAM and DELPHIA ANN GRAHAM, Defendants.

Kansas City Court of Appeals, Nov. 11, 1918.

1. DEEDS OF TRUST: Priority of Liens: Equity. Where a creditor has a lien on two parcels of property, and another creditor has a lien upon but one of them, the former creditor will, in equity, be required to seek satisfaction out of that fund or parcel upon which the other creditor has no lien.

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A person having a right or interest in property, which he is obliged to protect by paying a mortgage thereon, will, if he is not primarily responsible for such mortgage debt, be subrogated to the rights of the mortgagee to the extent neces sary for his own protection.

-: Principal and Surety: Assumption of Encumbrance. The relationship of principal and surety between a grantor and a grantee, created by the latter agreeing and assuming to pay a mortgage on the property, does not affect the relation between the mortgagor and the mortgagee. The mortgagee cannot be compelled to treat the grantee as the principal debtor because the latter assumed the payment of the mortgage when he purchased the property.

Appeal from Holt Circuit Court.-Hon. Arch B. Davis, Special Judge.

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