
    JOHN P. CLARY, Respondent, v. GEORGE A. TYSON, Defendant; CITIZENS’ STATE BANK, Interpleader, Appellant.
    Kansas City Court of Appeals,
    January 5, 1903.
    Sales: PRINCIPAL AND AGENT: OWNER: SECURITY: BILL OE LADING: ATTACHMENT: ERAUD. The interpleader bank allowed the defendant to buy hogs and draw Ms cheeks on it with the understanding that the bank should have two dollars per car for the use of the money. The defendant shipped the stock and delivered the unindorsed bill of lading with a draft to the bank. Held: (1) Defendant and not the bank was the owner of the hogs and there was no relation of agency between them. (2) That the bank was defendant’s creditor and the unindorsed bill of lading with the accompanying draft operated as security to the bank for its debt, and was superior to the claim of an attaching creditor. (3) Whether the arrangement between the defendant and bank was affected with fraud was a question for the jury under all the facts.
    Appeal from Buchanan Circuit Court. — Hb». W. K. James, Judge.
    REVERSED AND REMANDED.
    
      F. I. Foss and Porter & Groves for appellant.
    (1) The arrangement between the interpleader hank and Tyson, by which the hogs were bought for the bank by Tyson in his own name was, valid; there is no controversy between Tyson and the bank as to the ownership of the property; it is not claimed .that the attaching creditor is in any manner injured by the transaction, his being an antecedent debt. Anderson v. Biddle, 10 Mo. 23. If the arrangement had been for a lien iipon the property in favor of the bank, the lien would have attached to the property in Tyson’s hands, and could have been enforced against the creditors of Tyson. Jones on Lie'ns, sec. 63. (2) Whether the effect of the agreement was to create a lien on the property for the money advanced, or to make Tyson a trustee of the hank, is not material; the effect and the principle are the same. If the purchase and consignment of the hogs in Tyson’s name, under the circumstances, raised a question as to the ownership of the property, the question was settled by Tyson’s draft on the consignee in favor of the bank, and delivery to it of the bill of lading. 1 Benj. on Sales (4 Am. Ed.), sec. 577. This whether the bill of lading is indorsed or not. Holmes v. Bailey,. 92 Penn. 57; Hathaway v. Haynes, 124 Mass. 311; Shaw v. Bank, 101 U. S. 557. (3) As there was in the case no question of intervening rights arising out of Tyson’s apparent ownership of the hogs, the interpleader’s claim to the property could only be defeated by proof of actual fraud. There was no evidence to support plaintiff’s allegations of actual fraud; but if respondent contends that there was, the contention, if sustained must result in a reversal because it raised a question which the court could not lawfully take from the jury by mandatory instruction. McDermot v. Barnum, 16 Mo. 123; Mathews v. Loth, 45 Mo. App. 459; Frankenthal v. Goldstein, 44 Mo. App. 189.
    
      D. C. Reeves and Stauber, Crandall & Strop for respondent.
    (1) In attachment proceedings the right to inter-plead is, under our statutes (R. S. 1899, sec. 417) in the nature of an action in replevin engrafted upon the suit by- attachment. Burget v. Borchert, 59 Mo. 80; Hellman v. Pallock, 47 Mo. App. 205; Huiser v. Beck, 55 Mo. App. 668; Spooner v. Ross, 24 Mo.. App. 599; Paper Co. v. Mangan, 60 Mo. App. 76. (2) The demurrer to the evidence was properly sustained by the trial court. Clark v. Railroad, 36 Mo. 202; Smith v. Railroad, 37 Mo. 287; Krampe v. Brewing Ass ’n, 59 Mo. App. 277; Callahan v. Warne, 40 Mo. 131; Twohey v. Pruin, 96 Mo. 104. It is not an error to take the case from the jury where the facts and legal inference to be drawn therefrom will not support a verdict. Knapp-Stout v. Joy, 9 Mo. App. 47; Jackson v. Hardin, 83 Mo. 175; Mexico v. Jones, 27 Mo. App. 534; Reichenbach. v. Ellerbe, 115 Mo. 588; Hite v. Railroad, 130 Mo. 132. (3) The arrangement between Geo. A. Tyson and the inter-pleader bank, constituted Mr. Tyson the absolute owner of the hogs instead of said bank. Kollock v. Emmert, 43 Mo. App. 566; McDonald v. Boggs, 78 Mo. App. 28.
   ELLISON, J.

— Defendant was indebted to plaintiff in about $300 and the latter brought suit by attachment against-him. The sheriff seized a carload of hogs (then just arrived in St. Joseph) as the property of defendant. The appellant herein filed its interplea claiming the property. The hogs were sold by order of court and the proceeds, amounting to more than plaintiff’s claim against defendant, will be held by the sheriff awaiting the result of . the interplea. The trial court gave a peremptory instruction against interpleader at the conclusion of its evidence, without hearing from plaintiff. Interpleader then appealed.

The bank’s cashier was the principal witness and he testified that the interpleader bank and defendant Tyson were of the same town in the State of Nebraska. That it was arranged between the bank and Tyson (who had no money) that the latter should buy stock of the farmers in the surrounding country and give his checks on the hank in payment and that it would honor them when presented. That the stock was to be driven in- and shipped to market, a draft for the amount of the shipment with the bill of lading was to' be delivered to the bank and the latter was to get “two dollars per car for the use of the money.” The stock was so bought and was shipped to Harris & Co., commission men at St. Joseph, defendant delivering the bill of lading to the bank without indorsement. The witness stated that Tyson bought for the bank and seeks to convey the impression that the stock was the property of the bank gathered together by Tyson as an agent. But we refuse to allow that theory. The face of the whole case shows that the stock was Tyson’s. The hank knew nothing of his purchases or his prices and had no interest in the profits or losses, or other interest, save two dollars per car for the use of the money advanced.

But the hank hy advancing the money for the purchase of the stock became Tyson’s creditor and had a right to secure itself to the amount of its claim. And it did effectually do so hy receiving the draft and hill of lading from Tyson. The delivery of the bill of lading was a transfer of the property to the bank by way of security although it was not indorsed. Its indorsement was not a necessary thing to the validity of the transfer. Bank v. Homeyer, 45 Mo. 145; Bank v. Railroad, 62 Mo. App. 531; Dymock v. Railroad, 54 Mo. App. 400; Porter on Bills of Lading, secs. 496, 497, 504, 507, 508; Holmes v. Bailey, 92 Pa. St., 57; Hathaway v. Haynes, 124 Mass. 311. The property remained thus pledged to interpleader in the hands of the disinterested consignee at St. Joseph and was therefore superior to plaintiff’s claim as an attaching creditor.

Of course, if it can he shown, as is charged, that the arrangement between the hank and Tyson was a fraudulent cover for him whereby he might conceal his-, deals and his property from his creditors, then the hank would losé its right through its guilt in the transaction. But that is a question of fact in which all relevant circumstances may he shown and about'which the parties have the right to the opinion of a. jury. The judgment will be reversed and the cause remanded.

All concur.  