Bowens v. Benson

• Decision Date: 31 March 1874
• Citation: 57 Mo. 26
• Parties: ISAAC BOWENS, Respondent, v. VINCENT BENSON, Appellant.
• Court: Missouri Supreme Court

57 Mo. 26

ISAAC BOWENS, Respondent,

v.VINCENT BENSON, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Henderson & Shields, for Appellant.

It is well settled that a mortgagee of personal chattels, after the day of redemption is passed, is regarded in law as the absolute owner and can dispose of the property as he pleases. (Robinson vs. Campbell, 8 Mo., 365, 366; Robertson vs. Campbell, 8 Mo., 615, 617; Williams vs. Rorer, 7 Mo., 556; Lacey vs. Gibboney, 36 Mo., 320, 322; Ferguson vs. Thomas, 26 Mo., 499.)

F. J. Bowman, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This action was brought to recover the value of four or five horses alleged to have been taken by defendant from the possession of plaintiff and converted to his own use.

The facts appeared to be, as shown at the trial, that the plaintiff rented a farm of defendant for three hundred and seventy-five dollars, to be paid on the 1st of January, 1871, and for this sum he gave his note payable on that day, and to secure this note he executed a bill of sale or mortgage of the horses in question to defendant, which was to be void if plaintiff paid the note, but was to remain in force if the note was not paid.

The note was not paid on the day it was due. The defendant had allowed plaintiff to retain possession of the horses, as they were necessary to enable him to work the farm.

After the note became due, the defendant took possession of the horses, as the plaintiff insists, or they were voluntarily given up to defendant, as the defendant swears. That was a matter of fact submitted to the jury, and we will assume under their finding that the horses were not voluntarily given up. The defendant, at all events, got possession of them, and this suit is brought upon the hypothesis that such possession was wrongful, and entitled the plaintiff to damages equal to the value of the horses.

It seems that the plaintiff had the right under the lease to cut down timber and convert it into cord wood and rails, and that he had in October or thereabouts, about three acres cleared, and the timber ready for splitting; that he had arranged with his friends and associates in the neighborhood to have what he calls a “Bee,” that is to get the aid of all the negroes in the neighborhood in splitting up his felled timber and making a short job of it.

The landlord, the defendant, objected to this plan, and insisted that no such gathering should be held on the premises, but told the plaintiff to go on with such speed as he and his assistant laborers could make, and he would give him time on his note, and not exact a punctual payment on the 1st of January.

This the defendant denied, but the jury found against him, and we will assume that the plaintiff's account of this is correct.

The court instructed the jury, that if the property was delivered to defendant only for security, and then returned to plaintiff to keep till the note was due, and if the time of payment was extended, and that time had not expired when defendant took the stock, and the plaintiff did not voluntarily...