Roach v. St. Louis Type Foundry

Decision Date23 February 1886
Citation21 Mo.App. 118
PartiesJ. N. ROACH, Respondent, v. ST. LOUIS TYPE FOUNDRY, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

THOMAS METCALFE, for the appellant: To maintain trover and conversion, the plaintiff must show that at the time of the conversion he had a special property in the goods converted, and the actual possession thereof, or the legal title thereto, and the right of possession. Parker v. Rodes, 79 Mo. 91; Stevenson v. Fitzgerald, 47 Mich. 166; Stephenson v. Little, 10 Mich. 433; Middlesworth v. Sedgwick, 10 Cal. 392; Sheldon v. Soper, 14 Johns. 352; 2 Greenl. Ev., 683, sect. 636; 7 Chit. Pl. (9 Am. Ed.) 148, 150, 151; Clark v. Skinner, 20 Johns. 465; McCurdy v. Brown, 1 Duer, 101; Doworth v. Jones, 4 Id. 201; Whitcomb v. Hungerford, 42 Barb. 177. The deed of trust under which the plaintiff asserts his right to recover is a Texas contract; was made and was to be executed in that state, and is governed and controlled by the laws of Texas; and the plaintiff has only such rights under the deed of trust as are given to him by the laws of Texas. Stix v. Mathews, 63 Mo. 371.

HENRY M. BRYAN and THOMAS K. SKINKER, for the respondent: The mortgageor of personalty may maintain replevin for it. Barry v. Burckhartt, 1 Mo. 418; Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Hall v. Harris, 11 Tex. 300. Any wrongful act which negatives or is inconsistent with the plaintiff's rights is per se a conversion. Allen v. McMonagle, 77 Mo. 478; McCoy v. Hyatt, 80 Mo. 130.

ROMBAUER, J., delivered the opinion of the court.

The action is trover. The plaintiff is trustee in a deed of trust securing the payment of two notes, one of which is held by the defendant, the other by one Wood, whom the plaintiff represents as trustee. Both notes are overdue. The property covered by the deed of trust, consisting of type and printers' material, is in the defendant's possession in the city of St. Louis, and was demanded by the plaintiff of the defendant prior to the institution of the suit.

The defence rests on two grounds: First. That the plaintiff has no interest in the property because the note held by Wood is paid, and the property released from its lien by the action of Wood. Second. That the contract of the deed of trust is a Texas contract, made and to be performed in the state of Texas; that the defendant is a purchaser of the property at execution sale, upon a judgment obtained against the mortgageor's vendee in the state of Texas; that under the statute and adjudged law of the state of Texas, the mortgageor of property continues its legal owner and entitled to its possession, until the foreclosure of the mortgage by sale or by proceedings in equity, and the purchaser from the mortgageor, either at execution sale or otherwise, is entitled to the possession of the property as well as to the equity of redemption; that the defendant being such purchaser is entitled to the possession of the property, and that the plaintiff had not, at the date of the institution of this suit, such right of property, or right of possession as entitled him to maintain this action.

The trial resulted in a verdict and judgment for the plaintiff. The evidence, on the part of the plaintiff, tended to show the execution of the deed of trust in Texas, by the original owners; the deed containing a clause authorizing the plaintiff in default of payment of the notes, to sell the property at the court house door in Weatherford, Texas, to the highest bidder, and upon receipt of proceeds, to make good and sufficient title to the property; apply part of the proceeds to the payment of expenses of sale, and the trustee's compensation; and the residue to the payment of the notes. It also tended to show that the note held by Wood was unpaid; that the defendant was in possession of the property, and that the plaintiff, prior to the institution of the suit, demanded the surrender thereof.

This evidence, under the decisions of this state, made out a prima facie case for the plaintiff. Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393.

The defendant introduced evidence tending to show that the Wood note was paid, or at least that its lien was discharged by an agreement between Wood and the owner of the property. It further introduced evidence, by statute and decisions of the state of Texas, substantiating its defence, that under the laws of that state, the mortgageor and his vendees, at voluntary or judicial sale, are entitled to the possession of the property mortgaged until foreclosure; and, also, evidence tending to show that it had taken possession of the property, as purchaser at a judicial sale, as claimed in its answer.

That the law of Texas is substantially to the effect as claimed by the defendant must be conceded. Rev. Stat. Tex. 1879, sect. 2296; Hall v. Harris, 11 Tex. 300; Duty v. Graham, 12 Tex. 427; Whootton v. Wheeler, 22 Tex. 338; Willis v. Texas, 59 Tex. 628.

Such being the case, the respective rights of the parties are to be determined by the Texas law. 2 Pars. Cont. 586; Stix v. Mathews, 63 Mo. 371. This, however, does not dispose of the difficulty.

As we find the law in Texas, it substantially establishes this doctrine: Where a mortgage is executed, the mortgageor and his vendees are entitled to the possession of the property until foreclosure, but such possession is not the possession of an absolute owner. After condition broken they are mere bailees of the mortgagee or trustee, with the right to redeem the property from the lien of the mortgage before foreclosure, and the implied duty to deliver it in case of foreclosure to ...

To continue reading

Request your trial
7 cases
  • Kavanaugh v. Supreme Council of Royal League
    • United States
    • Missouri Court of Appeals
    • June 6, 1911
    ... ... Louis June 6, 1911 ...           Appeal ... from St. Louis City ... 371; Hartmann v. L. & N. R. Co., 39 Mo.App. 88, 94; Roach v. St. Louis ... Type Foundry, 21 Mo.App. 118; Mullen v. Reed, ... 64 ... ...
  • St. Louis Fixture & Show Case Co. v. F.W. Woolworth
    • United States
    • Missouri Court of Appeals
    • December 3, 1935
    ...even necessary. Allen v. McMonagle, 77 Mo. 478; Miller v. Lange, 84 Mo. App. 219; McLachlin v. Barker, 64 Mo. App. 511; Roach v. St. Louis Type Foundry, 21 Mo. App. 118; Warnick v. Baker et al., 42 Mo. App. 439; Southwest Port Huron Co. v. Cobble, 124 Mo. App. 647; Peoples State Sav. Bank v......
  • Kavanaugh v. Supreme Council of Royal League
    • United States
    • Missouri Court of Appeals
    • June 6, 1911
    ...construction, and legal effect. See Stix v. Mathews, 63 Mo. 371; Hartmann v. L. & N. R. Co., 39 Mo. App. 88, 94; Roach v. St. Louis Type Foundry, 21 Mo. App. 118; Mullen v. Reed, 64 Conn. 240, 29 Atl. 478, 24 L. R. A. 664, 42 Am. St. Rep. 174; Liverpool, etc., Co. v. Ins. Co., 129 U. S. 397......
  • St. Louis Fixture & Show Case Co. v. F. W. Woolworth Co.
    • United States
    • Missouri Court of Appeals
    • December 3, 1935
    ...Allen v. McMonagle, 77 Mo. 478; Miller v. Lange, 84 Mo.App. 219; McLachlin v. Barker, 64 Mo.App. 511; Roach v. St. Louis Type Foundry, 21 Mo.App. 118; Warnick v. Baker et al., 42 Mo.App. 439; Southwest Port Huron Co. v. Cobble, 124 Mo.App. 647; Peoples State Sav. Bank v. Mo. K. & T. Ry. et ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT