Brown v. Koenig
| Decision Date | 11 May 1903 |
| Citation | 74 S.W. 407,99 Mo.App. 653 |
| Parties | BEN P. BROWN, Appellant, v. WILLIAM KOENIG, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. J. E. Hazell, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Work & Work with Rutherford & Chambers for appellant.
(1) The court erred in sustaining a demurrer and directing a verdict for defendant at the conclusion of plaintiff's evidence. 1 Greenleaf on Ev., secs. 83, 92, 485, 508; Winham v Kline, 77 Mo.App. 36-44; Flournoy v. Warden, 17 Mo. 435; Karr v. Jackson, 28 Mo. 317; Howell v Carl, 50 Mo.App. 440; Moore v. Gans, 113 Mo 110; R. S. 1899, sec. 3098. (2) The proof established a valid mortgage under the laws of Iowa. By virtue of comity it is valid everywhere. 1 Cobby on Chat. Mtgs., sec. 64; Smith v. McClain, 24 Ia. 322; Smith v. Hutchings, 30 Mo. 380; Bank v. Morris, 114 Mo. 255; Bevis v. Bolton, 31 Mo. 437; Fuert v. Rowell, 62 Mo. 524; Bank v. Metcalf, 29 Mo.App. 384; s. c., 40 Mo.App. 494; Jones on Chattel Mortgs. sec. 260.
D. E. Wray and A. A. Kroop for respondent.
--This is an action of replevin to recover the possession of a horse and buggy. There was a trial and at the conclusion of the evidence the court peremptorily instructed the jury to find for defendant; and from the judgment the plaintiff appealed.
As there were no instructions given, other than that in the nature of a demurrer, and as the defendant has not favored us with any statement, brief or argument in the case, it is rather difficult to determine just upon what theory of law the case was disposed of adversely to the plaintiff. It is not disclosed by the record in what capacity the defendant was in possession of the property at the time of the caption. There is, however, as much as a bare hint in the evidence that he was then an officer and in possession under some kind of judicial writ or process, but as to precisely how these matters were, we are left in the main to conjecture.
It appears that the plaintiff, a banker in Ottumwa, Wapello county, in the State of Iowa, in July, 1901, loaned to one Grant Wolf, likewise a resident of that city, eighty dollars, for which the latter and wife executed their promissory note of that date payable September first thereafter, and to secure the payment of which note they gave to plaintiff a mortgage on a horse and buggy; and which said mortgage was acknowledged by Wolf, but not by his wife. It was duly recorded in the proper county. It appears that Wolf removed the mortgaged property to this State without the knowledge or consent of the plaintiff, and without discharging the mortgage covering it.
The plaintiff, it appears, found the property in this State in the possession of the defendant of whom he made demand for the delivery, which being refused, this action was brought. As far as we can discover, the defendant sought to defeat the plaintiff's recovery solely on the ground that his Iowa mortgage was invalid, or at least was ineffectual to pass to him the right to the possession as against defendant. It seems to us that the plaintiff's mortgage prima facie entitled him to the recovery of the possession.
For aught that appears in the record, this is not a contest between plaintiff mortgagee and an existing creditor or subsequent purchaser without notice; and therefore section 2906 of the Iowa code is inapplicable to plaintiff's mortgage. The section of the statute just referred to amongst other things, provides that, "No incumbrance of personal property which may be held exempt from execution by the head of a family, if a resident of this State, under the provisions of law, shall be of any validity as to such exempt property only unless the same be by written instrument, and unless the husband and wife, if both be living, consent in the same joint instrument." Now, it seems to have been defendant's contention that the property in dispute was exempt under the statutes of Iowa and that the plaintiff's mortgage was not valid under the section of the statute from which we have just quoted. The statutes in force in the State of Iowa relating to exemptions of personal property not having been given in evidence, we can not take notice of them. But assuming that under the statute of that State the mortgaged property was held exempt from execution by Wolf as the head of a family, still, we must think the mortgage in issue was valid, because he and his wife did "concur in and sign the same joint instrument." Both concurred in the signing but not in the acknowledgment, and we think that this was all the statute required to render the instrument effectual. In Grover v. Younie, 110 Iowa 446, 81 N.W....
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