Block v. Chase

• Decision Date: 31 October 1851
• Parties: BLOCK v. CHASE.
• Court: Missouri Supreme Court

15 Mo. 344

BLOCK

v.CHASE.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

WHITTLESEY, for Respondent. 1. That the equity and mortgage of S. P. Chase, upon this property is prior in point of time to that of the plaintiffs. This will appear from the answers and from the evidence. 2. That they first came into possession of the property, thus uniting the possession with the right. Consequently Solomon P. Chase is first entitled to be paid his demand before the plaintiff can claim any part of the proceeds.

1. As between two sales or mortgages of personal property, the first possessor holds it. Burwell v. Robertson, 1 West. Leg. Abs. 222; Rocheblave v. Potter, 1 Mo. R. 561; Potter v. Gratiot, 1 Mo. R. 368; Fitzsimmons v. Ogden, 7 Cranch, 2; Berry v. Mut. Ins. Co., 2 Johns. Ch. R. 603; Becket v. Costly, 2 Brown's Ch. R. 650; 15 Ves. Eq. 354; Broom's L. Maxims, 329. As by the terms of the award Ladew held the property for S. P. Chase, Chase is first entitled, as he has the older equity of the first possession. 2. That as plaintiffs knew of the award, and gave no notice of their claim, they must be bound by the award. Govett v. Richmond, 7 Sim. Ch. R. 1. 3. That the recording of the deed of trust of the plaintiffs, is not equivalent to actual possession, nor to notice, and our statute does not make it so. Our statute requires deeds and mortgages of personal property to be recorded, to remove presumptions of fraud, and does not make the recording notice. The proviso is inserted in the statute of fraudulent conveyances, and was intended to rebut the presumption of fraud arising from the mortgagors' remaining in possession. We contend, therefore, that as S. P. Chase is prior in point of time, prior in possession, with prior equities, he is entitled to be first paid his demand, before the plaintiffs can claim the property or its proceeds.

FIELD, for Respondents. I. Taylor, one of the defendants, was a competent witness for the complainants; for he put in no answer and made no defense. His own liability was consequently fixed by his own admission, and between the other parties he was indifferent. Bradley v. Root, 5 Paige, 633. II. The objection to the jurisdiction of the court, in equity, is conceived to be untenable. 1. The case is of a formal trust, asserted in the name of the cestui que trust, and was certainly not tenable at law. It is no answer to say that a suit at law might have been maintained in the name of the trustees; for it was the right of the cestui que trust to proceed in his own name, and for that purpose he was compelled to sue in equity. 2. Besides, there was, in the case, another circumstance peculiarly of equitable consideration, viz: that Chase, claiming an interest in the property, knew of the loan by Block and of the deed of trust by Taylor, and did not interpose his claim, but actually himself, took part of the benefit of the transaction. III. The decree was right, under the pleadings and proofs. Taylor was ostensible owner of the property; he negotiated the loan and made the deed of trust with the knowledge and consent of Chase, as was proved by two witnesses, Taylor and Yost. The transactions between Taylor, W. F. & S. P. Chase were secret, not communicated to Block, nor had the latter any notice of those transactions when they advanced their money and took the deed of trust. The complainant's deed was recorded without delay. That on which appellants rely was never recorded at all.

P. S.--In looking at appellants' brief, I perceive it is objected that the decree is too large, and should be (after deducting for usury) only $400. The appellants overlook the fact that the suit was pending over three years in the Circuit Court. For this delay of the law caused by an unjust defense, it would be unconscionable to extend the penalty of the statute. The rights of the parties, in the matter of usury, are to be referred to the commencement of the suit. There was then due $410. Add six per cent after, and it makes the sum due.

SCOTT, J.

This was a suit begun by a bill in chancery, filed by Block and others against Chase and others, to restrain the sale of a printing establishment, known as the office of the “St. Louis Post and Mystic Family,” and for relief. On a decree for Block and others, Chase and others brought the cause to this court, by appeal.

W. F. Chase held the property in trust for his brother, S. P. Chase. It was purchased with money procured by the indorsement of S. P. Chase, and which he afterwards paid. Wm. F. Chase sold one half of it to J. D. Taylor, and took a mortgage on it to secure the payment of the purchase-money. Taylor was put in possession of the establishment, and published a paper which was edited by Wm. F. Chase. At the time of his purchase, Taylor gave a declaration in writing, stating, that he held one-half of the property in trust for S. P. Chase of Ohio. While things were in this posture, Taylor, to enable him to carry on his business, borrowed six hundred and twenty dollars from E. & E. Block, to secure the payment of which, he...