Cummins v. King

Decision Date16 December 1924
Docket NumberNo. 3663.,No. 3664.,3663.,3664.
Citation266 S.W. 748
PartiesCUMMINS et al. v. KING, Constable.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Newton County; Chas. L. Henson, Judge.

Action by E. A. Cummins and others against T. C. King, Constable. From judgment for plaintiffs for part of property and for defendant for remainder, plaintiffs appeal, and defendant brings cross-appeal. Appeals consolidated. Affirmed.

Leo H. Johnson, of Neosho, for appellants.

Horace Ruark and Geo. Hubbert, both of Neosho, for respondent.

COX, P. J.

There were cross-appeals in this case, and the cases were docketed separately in this court; One being No. 3663 and the other 3664. We shall consider them as consolidated in this court and dispose of them as one case.

This action is in replevin. A jury was waived and the case tried by the court. Judgment went for plaintiff for part of the property and for defendant for the remainder. The costs were all taxed against defendant. Plaintiffs appealed from the entire judgment. Defendant also appealed, but suggests in this court that if he be relieved from the judgment against him for costs, be will not seek a reversal in other respects.

The defendant constable levied upon the property in controversy under a writ of attachment against one F. F. Stipp. The plaintiff claimed under a chattel mortgage executed by Stipp to D. A. Cummins and also a bill of sale from Stipp to all of plaintiffs. Mr. Stipp was a tenant on the farm of D. A. Cummins, but had been unsuccessful. He became indebted to Cummins for advancements to assist him in producing a crop, and gave Mr. Cummins a chattel mortgage upon the grain to be produced on the farm and also on the farm machinery which he owned. He had been on the farm for two years and had borrowed money from a bank and all of plaintiffs had signed his note at the bank as sureties for him. Some time prior to the levy of the attachment writ, Mr. Stipp gave a bill of sale to all of plaintiffs for all the property involved here. After the property had been levied on under the writ of attachment against Mr. Stipp, this suit in replevin was begun. At the trial, the court found for plaintiff for the grain and for defendant for the farm machinery and taxed the costs against defendant.

As we view this case, its proper determination rested upon a question of fact as to whether or not plaintiffs had taken possession of the property in controversy under the chattel mortgage and bill of sale or either of them prior to the levy of the writ of attachment. The mortgage had not been recorded, but when the constable levied the writ of attachment, Mr. Stipp had the mortgage in his possession and told the constable he had it and exhibited it to him. The constable had actual knowledge of the chattel mortgage before the levy, but that did not give the plaintiffs any advantage, for, under our statute, section 2256, Rev. Stat. 1919, the chattel mortgage which had not been recorded was of no effect as against an attaching creditor unless possession of the property mortgaged had been taken by the mortgagee before the levy of the attachment writ. A constable who seizes property under an attachment writ is in the same position as one who has purchased from the mortgagor, and hence if the mortgagor was in possession at the time of the levy, the levy would take precedence over an unrecorded mortgage, even though the constable was informed of the existence of the mortgage prior to the levy. Rev. Stat. 1919, § 2256; Wilson v. Milligan, 75 Mo. 41; Humphreys Savings Bank v. Carpenter et al., 213 Mo. App. 390, 250 S. W. 618.

The validity of plaintiffs' claim under the chattel mortgage depended solely on the question as to whether Stipp or Cummins was in possession of the property at the time of the levy. The court found for plaintiffs for the grain, and we think the evidence supports that finding. Mr. Cummins testified that he had nailed up the doors of the granaries where the grain was located, and we think that sufficient to sustain a finding of actual possession of the grain by him.

The bill of sale was signed by Stipp and had attached to it a form of acknowledgment before a notary public with seal of the notary attached, on which appeared the name of the notary, but he did not sign the certificate of acknowledgment. The bill of sale was recorded before the levy, and plaintiffs contend that it gave constructive notice that plaintiffs were then the owners of the property, while defendant contends that since the notary did not affix his signature to the acknowledgment, the instrument could not legally be admitted to record and for that reason it imparted no notice. We...

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  • Kelvinator St. Louis v. Schader
    • United States
    • Court of Appeal of Missouri (US)
    • June 2, 1931
    ...... Stonebraker v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo.App. 631; Bozeman v. Fields, 33. Mo.App. 432; Cummins v. Kind, 266 S.W. 748, 219. Mo.App. 271; Kibbel v. Ragland, 263 S.W. 507;. Hart v. Farmers Bank, 28 S.W. 121; Dierling v. Pettit, 140 ......
  • Kelvinator St. Louis, Inc., v. Schader
    • United States
    • Court of Appeal of Missouri (US)
    • June 2, 1931
    ...therein. Stonebraker v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo. App. 631; Bozeman v. Fields, 33 Mo. App. 432; Cummins v. Kind, 266 S.W. 748, 219 Mo. App. 271; Kibbel v. Ragland, 263 S.W. 507; Hart v. Farmers Bank, 28 S.W. 121; Dierling v. Pettit, 140 Mo. App. 88. (3) The refrigeration sy......
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    • United States State Supreme Court of Missouri
    • July 9, 1934
    ......Cummins v. King, 266 S.W. 748. (4) The original sale of the automobile to P.C. Gruver without contemporaneous transfer of Sleight's certificate of title was ......
  • Cummins v. King
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1924
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