
    Scofield, Interpleader, v. Burkett, Appellant.
    
    Assignment of Personal Property: delivery : fraud : r. s., sec. 2505. Section 2505 of the Revised Statutes, relating to sales of personal property, requiring delivery within a reasonable time, and declaring such sales fraudulent and vcfid, when the provisions of said section are not obeyed, does not apply to assignments, and the assignment of goods, not fraudulent in fact, is not fraudulent in law, on the ground of non-delivery by the assignor.
    
      'Appeal from, Scotland Circuit Court. — Hon. Ben. E. . Turner, Judge.
    •Affirmed.
    
      Smoot & Pettingill for appellant.
    (1) The interplea does not state a cause of action. (2) The court should have given instruction numbered one asked by Burkett. (3) The court erred in giving the instruction to the jury to find for the interpleader. (4) The court erred in admitting the deed of assignment in evidence over the objection of Burkett. The inter-plea is in the nature of an independent action, the record of which should be kept separate from the proceedings. Wolff v. Yette, 17 Mo. App. 36; Brennan v. Driscoll, 33 Mo. 372. It follows that the property claimed in the interplea should be particularly described. The retention of the possession and control of the goods by the assignor, after the assignment, was fraudulent. Hatcher v. Winters, 71 Mo. 35; Anderson v. Fuller, 36 American Decisions, 290. This deed of assignment, if valid, is an ■absolute appropriation of the goods to the creditors, and comes within the rule maintained in regard to the absolute sale of personal chattels, and the same rule as to change of possession obtains. Rice v. Courtes, 32 Yt. 460 ; Burrill on Assignment [4 Ed.] sec. 272, pp. 392 and 393. And in this case was fraudulent per se, and should have been so declared by the court.
    
      R. B. Cramer and John B. Mudd for respondent.
    The case of Goodwin v. Kerr, 80 Mo. 276, is- fully decisive of this case, and it is only necessary to refer to it and the authorities there cited, together with Revised Statutes, section 2505, to show that the word assignment is not included in said section, and that such section does not apply to assignments.
   Shekwood, J.—

This is a contest between Burkett, plaintiff in an attachment suit, against Thornbury, and Scofield, interpleader therein, who claims, as assignee, the goods attached.

It was ruled in Goodwin v. Kerr, 80 Mo. 276, that section 2505, Revised Statutes, 1879, relating to sales of personal property, requiring delivery within a reasonable time, etc., and declaring such sales fraudulent and void, unless the provisions of that section were obeyed, did not apply to assignments. In the present instance, ■ counsel for Burkett stated, during the progress of the trial, that they did not rely upon any fraudulent intent, or fraud in fact, on the part of Scofield and Thornbury, and on this theory was the cause tried, i. e., that the assignment was a fraud in law. Having tried the cause on this theory, the trial court very properly refused a peremptory instruction to the jury to find in favor of the attaching creditor, Burkett, and very properly, of its own motion, gave an instruction to the jury to find for the interpleader. Therefore, judgment affirmed.

All concur.  