
    Wise, Respondent, v. Wimer, Appellant.
    1. In a suit brought by an assignee against the sheriff for improperly levying an attachment in favor of a creditor of the assignors, the record of the attachment suit (the assignee not having been a party thereto) is inadmissible in evidence to show fraud in the assignment.
    2. To make an assignment for the benefit of creditors void for fraud, the fraud must be brought home to the assignee.
    
      •Appeal from St. Louis Court of Common Pleas.
    
    This was an action brought to recover the value of certain personal property, which defendant had seized and carried away, and of which plaintiff claimed to have been in the lawful possession as owner in trust for the benefit of the creditors of Osborne, Camp & Co., they having made an assignment of the same for the benefit of their creditors. The defendant set up in his answer that he made the seizure complained of, as sheriff of St. Louis county, by virtue of a writ of attachment in his hands against said Osborne, Camp & Co. ; that his levy was made before the execution and delivery of the dped of trust to plaintiff; also, that said deed was made with intent to hinder, delay and defraud the creditors of said Osborne, Camp & Co.
    The cause was tried by the court, and judgment was given for the plaintiff. The facts, as found by the court, sufficiently appear in the opinion of this court. In the course of the trial defendant offered in evidence the record of the proceedings in the attachment suit in which the levy was made; it was ruled out as inadmissible.
    
      Knox & Kellogg, for appellant,
    cited 11 New Hamp. 55 ; 2 Hill, 628 ; 2 Shepley, 303 ; 16 Pick. 33; 17 Mass. 110 ; 13 Met. 304, 200 ; 11 Pick. 352; 10 Serg. & Rawle, 201; 17 Pick. 140 ; 2 Watts & Serg. 147; 1 Hoff. 511; Smith, 190 ; 17 Ver. 271; 6 Watts & Serg. 94 ; 5 Mo. 463.
    
      Krum & Harding, for respondent,
    cited 18 Mo. 13; 19 Mo. 17.
   RylaND, Judge,

delivered tbe opinion of tbe court.

From tbe finding of tbe facts by tbe court in this case, it is obvious that, whether tbe deed of assignment be such an instrument as is required by law to be recorded or not in order, to give it validity, there was such a delivery here of tbe assigned property by tbe assignors and a possession of it by the as-signee as to do away with tbe necessity of recording tbe instrument. The assignment was made on tbe 14th July, 1854. Tbe assignee, Wise, asked for tbe key of tbe shop and premises of Osborne, Camp & Co., which was delivered to him. He thereupon delivered tbe key and assignment to Mr. Lord, informing Lord that Osborne, Camp & Co. bad made an assignment to him (Wise), and asked Lord if be would take possession of tbe property named in tbe assignment for him (Wise), and keep possession thereof as Wise’s agent. Lord agreed to do so ; and about five o’clock in tbe evening went to Osborne, Camp & Co.’s place of doing business with tbe key, and took possession of the premises. Tbe said place of business bad been kept open, as usual, during the whole of said 14th day of July, 1854, and after Lord took possession continued open till six o’clock, which was tbe customary hour of closing tbe same. Lord then locked tbe front door, and kept tbe bey thereof, leaving tbe side door open, as usual, for tbe workmen to leave by. Whilst tbe property was in this condition, in possession of Lord, be being actually present in tbe back part of tbe shop, tbe defendant’s deputy entered the side door and seized and carried away tbe property now sued for. Tbe sheriff’s deputy and tbe plaintiff in tbe attachment were informed of tbe assignment by Osborne, Camp & Co. to tbe plaintiff for tbe benefit of their creditors. On tbe 15th of July, tbe deed of assignment was duly filed for record. If by the law this instrument was to be recorded in order to give it validity, and of this there is much doubt, still there must be a reasonable time allowed for such filing and recording. Here, tbe instrument was filed the next day, and surely this ought to be considered within reasonable time.

Whether, then, we look at this case in regard to the possession of the property by Wise, the plaintiff, after the execution of the assignment, or at the time when the instrument was filed for record, we think, on both grounds, the law is with the plaintiff, and was properly so decided for him by the lower court.

There is no error in rejecting the record of the suit between Anderson and Osborne, Camp & Co. It was not proper evidence against Wise in this suit. He was no party ; and there is no charge against him of fraud. Fraud must be brought home to him to make the assignment void, so far as his rights are involved. (Gates v. Labeaume, 19 Mo. 17.) This was so decided last term in the case of Stewart v. Wimer, not yet reported. In order to affect the assignee, he must be charged with complicity in fraud of the assignors.

Upon the whole record, as presented to us, there appears no error. The facts found are sufficient to sustain the judgment; and we see no error in admitting or rejecting evidence or in declaring the law of the case. The judgment will therefore be affirmed ;

the other judges concurring.  