Buddington v. Mastbrook

• Decision Date: 05 May 1885
• Citation: 17 Mo.App. 577
• Parties: G. C. BUDDINGTON ET AL., Appellants, v. A. MASTBROOK, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 577

G. C. BUDDINGTON ET AL., Appellants,

v.A. MASTBROOK, Respondent.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

WEBB & BUTLER, for the appellants: Possession is sufficient to enable one to maintain trover against any one except the rightful owner.-- Vanzant v. Hunter, 1 Mo. 71; Turleg v. Tucker, 6 Mo. 583; Sparks v. Purdy, 11 Mo. 222; McCandless v. Moore, 50 Mo. 511; Parker v. Rodes, 79 Mo. 91.

CREWS & BOOTH, for the respondent: After condition broken the title of mortgaged property is with the mortgagee.-- Lacy v. Giboney, 36 Mo. 320; Bowens v. Benson, 57 Mo. 26.

THOMPSON, J., delivered the opinion of the court.

This was in the nature of an action of trover, commenced before a justice of the peace, to recover damages for the conversion of a chattel. The plaintiff was the mortgageor of a chattel, in possession thereof with the consent of the mortgagee, though after condition broken. The defendant, a stranger to the mortgage, seized upon and converted the chattel, and the plaintiff brought this action for damages. The court nonsuited the plaintiff.

The only question for decision is whether the mortgageor of a chattel, after condition broken, but before the mortgagee has taken or demanded possession, may maintain an action for damages against a stranger to the mortgage, for its conversion. The learned judge of the circuit court held that he can not; proceeding upon the ground that the mortgageor, under such circumstances, is not the real party in interest, within the meaning of Revised Statutes, section 3462. We are unable to agree with this conclusion.

Undoubtedly the title to a mortgaged chattel, after condition broken, passes to the mortgagee, so that he can maintain replevin for the same, as against the mortgageor or any other person.-- Lacy v. Giboney, 36 Mo. 320; Bowens v. Benson, 57 Mo. 26; McCandless v. Moore, 50 Mo. 511. But it does not follow from this that if the mortgagee chooses to allow the mortgageor to remain in possession, the latter does not retain such a special property in the chattel as will enable him to maintain an action in the nature of trover against a third person who has wrongfully converted it. It is elementary knowledge that such an action could be maintained at common law. Indeed, the rightful possession of a chattel was sufficient at common law to enable the possessor to maintain trover in respect of it, against any one except the rightful owner. This has not been doubted since the leading case of Armory v. Delamirie (1 Str. 504; S. C. 1 Sm. L. C. 374), where it was ruled that the finder of a jewel might maintain trover for a conversion thereof by a wrong-doer. This doctrine has been either ruled or recognized in several cases by our supreme court, both before and since the code.-- Vanzant v. Hunter, 1 Mo. 71; Turley v. Tucker, 6 Mo, 583; Parker v. Rodes, 79 Mo. 88, 91. “Trover,” said Napton, J., “may be maintained for taking goods wherever trespass will lie.”-- Ireland v. Horseman, 65 Mo. 511, 513. “Possession,” said Bakewell, J., “is sufficient to enable the possessor to maintain trespass. Proof of actual possession by the plaintiff at the time of the trespass, in all cases suffices to maintain the action against a mere wrong-doer--a naked possessor who shows no title.”-- Hickey v. Hazard, 3 Mo. App. 480, 486.

It was the intention of the above named section of our practice act to prevent the prosecution of actions by, or in the name of, persons having no interest whatever in the subject matter of the suit, or in the name of fictitious parties; but it was not designed to abolish or narrow any right of action existing under the common law. In order to prevent the misconstruction of the section in question, the framers of the code made, in the succeeding section, among other exceptions, one of the most general character, by enacting that the trustee of an express trust may sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. And, to prevent any misunderstanding of this exception, a trustee of an express trust was defined to exclude “a person with whom or in whose name a contract is made for the benefit of another.”--R. S., sect. 3463. Now, a person who holds a chattel belonging to another, upon an...