Burgess v. Kattlemans

• Decision Date: 31 October 1867
• Citation: 41 Mo. 480
• Parties: JAMES BURGESS et als., Defendants in Error, v. HENRY KATTLEMAN, et als., Plaintiffs in Error.
• Court: Missouri Supreme Court

41 Mo. 480

JAMES BURGESS et als., Defendants in Error,

v.HENRY KATTLEMAN, et als., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1867.

Error to Second District Court.

A. Green, and F. & L. Gottschalk, for plaintiffs in error.

The injunction should not have been granted, there being no allegation of insolvency against Kattleman--20 Mo. 79. Plaintiffs had the right to replevin and trespass. The lien reserved is void, the case showing that defendants had the possession of the goods and right to sell, and therefore fraudulent--28 Mo. 173; 31 Mo. 445, 451; 34 Mo. 432; Brooks v. Wimer, 20 Mo. 503.

There being no allegation in the petition, nor any evidence on the part of the plaintiffs to the effect that Kattleman was insolvent, or not amply able to respond in damages for the trespass or the conversion, there is no equity in this case in favor of plaintiffs against the defendants--Jewett et al. v. Dixon, 20 Mo. 79. We therefore contend that the injunction was improvidently issued and the motion for its dissolution ought to have been sustained.

The leases which are relied upon by plaintiffs are made for the purpose of enabling the lessees to cut the timber from the premises and to sell the same, and all restrictions are to be construed with reference to this express intention of the parties: “Nothing in these restrictions however shall be construed as preventing the sale of timber to other parties by the party of the second part in the legitimate prosecution of their business.”

J. L. Thomas, for defendants in error.

Kattleman had both constructive and actual notice of the existence of the written lease from defendants in error to Moody and Twining; that t gave the lessors a lien upon all the staves, cord-wood, &c., manufactured from timber taken from the leased premises. He received the staves on the 5th or 6th of April, 1866, while the lease was filed for record on 27th March previous, and of this he should take notice--R. C. 1855, p. 364. Burgess and Thomas both informed him before he bought the staves that plaintiffs had a lien upon them and that they intended to enforce their lien--1 Sto. Eq. §§ 394 to 397. Furthermore, before Kattleman can successfully interpose the plea of an innocent purchaser he must show to the court that he paid a consideration at the time; receiving property in payment of an antecedent debt is not sufficient to protect him as an innocent purchaser. In this case. Kattleman even admits in his answer that he advanced no new consideration, but received the staves in payment of a store account previously contracted.

It was not necessary to allege or prove in this case that Kattleman was insolvent. If the injury resulting from acts of defendants was irreparable, it is sufficient--20 Mo. 99; 2 Sto. Eq §§ 930-33.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiffs against the defendants Twining, Moody and Kattleman, in the court below, for rent for certain land in Jefferson county. The land was leased by plaintiffs to Twining and Moody, at a certain specified rate, for the purpose of cutting cordwood, staves, heading, &c. The lease contained a provision by which the lessees agreed that the lessors should have a lien upon all the timber, staves, cord-wood, &c., to secure the payment of the rent as it accrued, and the performance of all the covenants and conditions of the lease; and in case default should be made in the payment of the rent by the lessees, or in the performance of either of the covenants, then the lessors should have the right to forfeit the lease and to take immediate possession of the timber, staves and cord-wood, and sell the same at public sale to satisfy the rent remaining due. Whilst rent was remaining due, Twining and Moody sold a quantity of the staves they had cut on the land to Kattleman, who took the same into possession and removed them from the premises; after which the plaintiffs gave notice to the defendants and proceeded to forfeit the lease, and took possession of all the staves, wood and timber remaining in the hands of Twining and Moody, and also made...