Boyce's Adm'r v. Smith's Adm'r

• Citation: 16 Mo. 317
• Parties: BOYCE'S ADMINISTRATOR, Respondent, v. SMITH'S ADMINISTRATOR, Appellant.
• Decision Date: 31 March 1852
• Court: United States State Supreme Court of Missouri

16 Mo. 317

BOYCE'S ADMINISTRATOR, Respondent,

v.SMITH'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

March Term, 1852.

1. The statute directing that a second new trial shall not be granted to the same party, except when the triers of the fact shall have erred in a matter of law, or when the jury shall be guilty of misbehavior, proceeds upon the supposition that the law has been correctly expounded to the jury, and is only applicable to such cases.

2. When a second new trial has been improperly granted, that matter can only be corrected by a mandamus from the Supreme Court.

3. When a new trial has been refused, the Supreme Court, on appeal or writ of error, will look into the record, and if it finds that incorrect law was given to the jury, will reverse the judgment and award a new trial, without regard to the number of new trials previously granted to the party.

4. Equitable interests in personal estate are not vendible under execution.

Appeal from St. Louis Circuit Court.

C. C. Whittelsey, for appellant.

1. After the expiration of the term for which the premises were let, the fixtures could not be removed, but became a gift to the landlord. Poole's Case, 1 Salk. 368; Holmes v. Tremper, 20 J. R. 29; Lyde v. Russell, 1 B. & Ad. 394; 2 Smith's L. C. 110; Fitzherbert v. Shaw, 1 H. Black, 258; 2 Smith's Lead. Cases, Am. ed. p. 194, and notes, p. 208.

2. The articles sued for were fixtures, and not mere personal chattels, and could not be removed after the term. Elwes v. Maw, 3 East. R. 38; 2 Smith's L. C. 194, American edition.

3. Dickinson & Holmes, being indebted to the defendant's intestate, and they having surrendered or left these fixtures upon the premises, and the intestate, Smith, being found in possession of the premises, the fair presumption of law is that they were abandoned in payment of the rent.

4. Dickinson & Holmes had, before the levy or issuing of the executions, sold and conveyed the property to Drake, as trustee for creditors, and Drake had immediately taken possession. The time limited for the payment of the debts had elapsed, and the title had become absolute in Drake, and Dickinson & Holmes had no title or right which could be levied upon and sold by execution, having a mere right to call for an account or to redeem, by showing that they had paid the debts secured. The title of Drake was absolute. Robinson v. Campbell, 8 Mo. R. 365; Same v. same, 8 Mo. R. 615; Williams v. Rorer, 7 Mo. Rep. 556; Brown v. Bement, 8 Johns. R. 96; Ferguson v. Lee, 9 Wend. R. 258; Ackley v. Finch, 7 Cow. R. 290.

5. The sale by the sheriff conveyed no interest to the plaintiff to enable him to maintain this action, as, at best, his right would be the right to redeem, the property being in the possession of the trustee, together with the legal title, which had become absolute by failure on the part of D. & H. to pay within the time limited by the deed, and that right was not subject to levy and sale; it was a chose in action. The interest of the mortgagor in chattels is not subject to levy and sale under execution. King v. Bailey, 8 Mo. Rep. 332; 2 Bacon's Ab., tit. Execution, 715. So that the mortgagor could not have maintained trespass for the taking of the goods by a stranger, but the suit must have been in the name of the assignee. Langdon v. Buel, 9 Wend. R. 80. It could only be levied on as the property of the mortgagee. Ferguson v. Lee, 9 Wend. R. 258. After forfeiture, the interest of the mortgagor cannot be levied upon and sold. Huntington v. Smith, 4 Conn. R. 235. The interest of the cestui que trust is subject to execution, and not that of the vendor. Eastland v. Jordan, 3 Bibb, 186.

6. The levy and sale by the sheriff was void, as the property, by the evidence, at the date of the fi. fa. the levy and sale, was in the possession of Drake, the trustee.

7. The instructions given by the court disregarded the evidence given on the trial that Dickinson & Holmes had transferred the possession as well as the title.

T. Polk, for respondent.

The plaintiff below has had four verdicts. On the fourth motion for a new trial, neither one of the only two reasons for which alone, by the statute, a second new trial can be awarded by the nisi prius court, is assigned as a ground of the motion. If neither of those reasons existed, the lower court could award no new trial, and, of course, could commit no error in refusing it. Humbert v. Eckert, 7 Mo. R. 259; Floersh v. Bank of Missouri, 10 Mo. R. 517; Rev. Code of 1845, p. 830, section 3.

A new trial could not a second time be granted for misdirection by the court. The error of law, alluded to by our act, must be a misconception of the instructions of the court, or an entire disregard of them. Hill v. Deaver, 7 Mo. R. 60; Dickey et al. v. Malechi, 6 Mo. R. 185; Hill v. Wilkins, 4 Mo. R. 86.

Possession of personal chattels is sufficient to maintain the action of trover for their conversion, against a mere wrongdoer having no title. 2 Sel. N. P. 521-2; Wilbraham v. Snow, 2 Saund. 47 and note; Barker v. Miller, 6 Johns. 195; Armory v. Delamirie, 1 Strange, 505; Sutton v. Buck, 2 Taunt. 302; Burton v. Hughes, 2 Bing. 193; Robert v. Wyatt, 2 Taunt. 268. Special property is also sufficient to enable a person to maintain it. 2 Sel. N. P. 521-2, and authorities there cited; Webb. v. Fox, 7 T. R. 398.

The deed of trust, as soon as the debts secured by it were paid, ceased to be a bar to plaintiff's recovery. Even in an action of ejectment, an outstanding term, which has been satisfied, has been held not to be a sufficient bar to the plaintiff's recovery. Adams' Eject. 85, and note; 2 B. & A. 710; Sugden on Vendors, top page, 542 et seq., and authorities there cited.

But this deed contains an express provision, that if the debts secured by it should be paid by the day therein mentioned, the deed should be void and the property released.

The jury was correctly instructed as to the law of fixtures. The instruction on that subject contained the law as laid down by this court in this very case, when it was first here. 9 Mo. R. 564; Elwes v. Maw, 3 East. 38; Lawton v. Lawton, 3 Atk. 13; Dudley v. Warde, Ambler, 113; Penton v. Robart, 2 East. 88; Curtiss v. Hoyt, 19 Conn. 154; Wetherby v. Foster, 5 Verm. R. 136; Gibbons on Fixtures, 22, 23, 24 et seq.

SCOTT, Judge, delivered the opinion of the court.

This was an action of trover, commenced by the plaintiff's intestate against the defendant's intestate, for the conversion of a quantity of plank and lumber, alleged to be fixtures. The plaintiff obtained judgment. There had been several previous trials, and a new trial had been awarded to the defendant for reasons which do not appear in the record of this cause. It appears that the intestate, Smith, leased to H. B. Dickinson the lot on which were situated the alleged fixtures, for the purpose of making bricks, from March, 1840, until March, 1841. On the 16th of March, 1841, the intestate, Boyce, obtained several judgments against the said H. B. Dickinson and Henry Holmes. On these judgments executions issued, returnable to the third Monday in July, 1841. The judgments were for the same debt, Dickinson and Holmes being partners. Under the executions, the property in controversy was sold, and W. H. Boyce became the purchaser. Dickinson & Holmes, by a deed of trust, bearing date the 30th of September, 1840, conveyed to Silas Drake the property in controversy, together with other property, to pay certain debts therein enumerated. It was provided in the deed, that if the debts secured to be paid were satisfied before the 15th of December following,...