Petring v. Heer Dry-Goods Co.

• Decision Date: 14 February 1887
• Citation: 3 S.W. 405,90 Mo. 649
• Parties: PETRING v. HEER DRY-GOODS CO., Interpleader, etc.
• Court: Missouri Supreme Court

3 S.W. 405

90 Mo. 649

PETRING v. HEER DRY-GOODS CO., Interpleader, etc.

Supreme Court of Missouri.

February 14, 1887.

1. ATTACHMENT — PRIORITY — CHATTEL MORTGAGE — DELIVERY OF GOODS TO MORTGAGEE.

Where a debtor executes a chattel mortgage to secure an actual indebtedness to a creditor, and subsequently delivers possession of the goods to the creditor under a written agreement reciting the mortgage, and he takes actual possession prior to the levy of an attachment, and continues to hold possession up to the time of the levy, he will be protected, and hold the goods as against the subsequent attaching creditor, although the mortgage covers after-acquired property, and would be void except as between the parties.

2. SAME — FORTHCOMING BOND — ESTOPPEL — INTERPLEADER.

Where goods subject to a mortgage, that have been delivered into the possession of the mortgagee to secure payment of his debt, are subsequently attached by another creditor of the mortgagor, and the mortgagee executes a forthcoming bond to the sheriff, and retains possession, he is not, as an interpleader, by reason of having given such bond, estopped from denying that the goods were the property of the mortgagor, in the absence of evidence to show that the attaching creditor has been deceived or induced, in some way injurious or prejudicial to him, to alter his position with reference to the property of his debtor in the writ, in consequence of the execution of the bond.

Appeal from circuit court, Lawrence county.

Goode & Cravens, for appellant. McAfee & Teel, for respondent.

RAY, J.

In April, 1881, plaintiff begun this suit, against the defendants John and A. J. Chrisler, by petition in the ordinary form for actions on account, with affidavit and bond for attachment against the property in controversy, which consists of a certain stock of dry goods and merchandise. The attachment writ was thereafter levied by the sheriff upon the said stock of goods while the same was in the possession of the Heer Dry-goods Company. Said Heer Dry-goods Company gave the sheriff a forthcoming bond, as provided in section 421, Rev. St., and retained the possession; and by permission of the court filed its interplea in the cause, claiming the property under a chattel mortgage executed by the said Chrislers, and acknowledged and recorded in December, 1878, conveying to C. H. Heer & Co. the said stock of goods and other described property, to secure the payment of a certain note therein specified. It was stipulated on the trial that the interpleader, the Heer Dry-goods Company, was the successor to and had duly acquired the rights of the said C. H. Heer & Co., the mortgagee in said mortgage. The defendants John and A. J. Chrisler filed no answer, and judgment was taken by default against them. The trial of the interplea, before the court, sitting as a jury, resulted in a finding and judgment in favor of the interpleader, from which the plaintiff has appealed. The mortgage further contained a provision, purporting to convey property to be thereafter acquired, viz., "all goods and property that may be placed in the store thereafter, at Chesapeake, by purchase or otherwise," and was otherwise valid and operative, on its face. The mortgagor, it is true, was authorized, by the terms of the mortgage, to sell the goods in the usual course of trade, but he was also thereby required to account for and pay over the proceeds of sales to the mortgagees. Prior to the institution of the attachment suit by plaintiff, the said Chrislers, father and son, delivered to the interpleader the possession of the goods in controversy under the following agreement:

                                                  "CHESAPEAKE, Mo., March 22, 1881
                

"We, John and Andrew J. Chrisler, composing the firm of John Chrisler & Son, of Chesapeake, Mo., have this day delivered full and entire possession of all our stock of merchandise, embracing dry goods, notions, groceries, hardware, clothing, hats, caps, drugs, and medicines, store fixtures, showcases, scales of all kinds, and everything in our possession and in our store at Chesapeake, Mo., to W. C. Hornbecak, for Messrs. Chas. H. Heer & Co., of Springfield, Mo. This delivery is made under the provisions of a mortgage executed by us to said Chas. H. Heer & Co., dated December 12, 1878, and recorded in office of the recorder, at Mt. Vernon, Mo., December 19, 1878. This delivery also embraces the books and all unpaid accounts due the firm of Chrisler & Son.

                      [Signed]                                   "JOHN CHRISLER
                                                                 "ANDREW CHRISLER."
                

This, we think, brings the case within the operation of the rule heretofore declared by this court in Greeley v. Reading, 74 Mo. 309, and by the St. Louis court of appeals in Nash v. Norment, 5 Mo. App. 545. The doctrine of these cases is that, where the mortgagee in good faith takes actual possession of the goods prior to the levy of the attachment, for the purpose of securing the payment of his debt, and continues to hold the actual possession up to the time of the levy, he will be protected, and will, in that event, hold the goods, as against the subsequent attaching creditor; and that, under this state of facts, it is immaterial that the mortgage contains stipulations which render it void, except as between the parties. Treating of this subject, Jones, in his work on Chattel Mortgage, says: "Delivery of possession under a mortgage, before rights have been acquired by others, will cure any invalidity there may be in the instrument, whether arising from an insufficient execution of it, the omission to record it, or from its containing a provision which makes it void, except as between the parties." Section 178.

In this case the debt secured by the mortgage was due and unpaid, and, as the possession was delivered under said agreement some time prior to the levy of the attachment by plaintiff, the trial court evidently, as appears from its ruling upon declarations of law asked by the parties, tried and determined the case in favor of the interpleader in harmony with the rule supported by these authorities. Some effort is made to distinguish this case,...