Caldwell v. Sisson

• Decision Date: 01 October 1910
• Citation: 150 Mo. App. 547,131 S.W. 140
• Parties: CALDWELL v. SISSON.
• Court: Missouri Court of Appeals

131 S.W. 140

150 Mo. App. 547

CALDWELL v. SISSON.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. CHATTEL MORTGAGES (§ 235½)—SUBSTITUTION OF NOTES—EFFECT.

The taking of a new note in exchange for an original chattel mortgage note does not ordinarily discharge the lien, the validity of which depends entirely on the intention of the parties.

2. CHATTEL MORTGAGES (§ 235½)—SUBSTITUTION OF NOTES—INTENTION—JURY QUESTION.

Whether parties to a chattel mortgage intended that a substitution of notes should discharge the mortgage lien is for the jury.

3. EVIDENCE (§ 445)—PAROL EVIDENCE AFFECTING WRITINGS—CHATTEL MORTGAGE NOTES.

Parol evidence is admissible to show that a note materially different from that described in a chattel mortgage was a renewal of the latter, and, in fact, secured by the mortgage.

4. CHATTEL MORTGAGES (§ 206)—ASSIGNMENT —RIGHTS OF ASSIGNEE.

The benefits of a chattel mortgage inure to the mortgagee's assignee.

5. HUSBAND AND WIFE (§ 133 ½)—WIFE'S PROPERTY — EVIDENCE OF OWNERSHIP — QUESTION FOR JURY.

That a wife signed a chattel mortgage with her husband, and the notes secured thereby, and that the mortgage required any surplus to be paid to her, does not conclusively show her to have been a joint owner of the property, so as to warrant direction of a verdict for defendant in replevin by the mortgagee on default, on the ground that she had not consented that the mortgage should secure a renewal note.

6. HUSBAND AND WIFE (§ 169)—WIFE'S SEPARATE PROPERTY — CHATTEL MORTGAGES — REPLEVIN BY MORTGAGEE.

If a wife was sole owner of personalty mortgaged by her and her husband, and consented to a continuation of the lien under substituted notes, the mortgagee can maintain replevin against the husband in possession on default.

7. HUSBAND AND WIFE (§ 169)—JOINT CHATTEL MORTGAGES—REPLEVIN.

If a wife was a joint owner of personalty mortgaged by her and her husband and the lien as to her interest was discharged, replevin will not lie against the husband on account of his undivided interest.

8. HUSBAND AND WIFE (§ 171)—CHATTEL MORTGAGES—REPLEVIN.

If a wife joined her husband in a mortgage of her separate chattels for his benefit and the lien continues against her, replevin lies against the husband in possession on default.

9. HUSBAND AND WIFE (§ 169)—JOINT TRANSACTIONS—PRESUMPTIONS.

A wife having signed the original and substituted notes under a chattel mortgage, it may be inferred that she was present and consented to a continuation of the lien as security therefor.

10. HUSBAND AND WIFE (§ 133½)—CHATTEL MORTGAGES — OWNERSHIP OF PROPERTY— JURY QUESTION.

The question whether a wife who joined her husband in mortgaging chattels is a sole or joint owner thereof, and, if so, whether she consented to continuation of the lien under substituted notes, is a question for the jury.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Replevin by Guy Caldwell against Harve Sisson. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Pearson & Pearson and Tapley & Fitzgerrell, for appellant. Thomas B. McGinnis and Elliott W. Major, for respondent.

NORTONI, J.

This is an action in replevin. The court instructed a verdict for defendant, and plaintiff prosecutes the appeal.

It appears that on March 28, 1905, defendant and his wife, Clara B. Sisson, executed a chattel mortgage upon the several horses sued for in this action to secure the payment of a promissory note for $315 to Henry Sisson and Webster Sisson. The condition of the mortgage was such that if the makers thereof should pay to Henry Sisson and Webster Sisson their certain promissory note described as of even date therewith, for the amount of $315, due one day after date, together with 6 per cent. interest thereon, then the mortgage was to be void and of no effect; otherwise it was to remain a valid and enforceable instrument. Among other things, the mortgage stipulates that, if the note described was not paid when due, the mortgagees might take possession of the several horses mentioned therein and sell the same at public vendue, after due advertisement, etc., the proceeds to be credited, of course, on the indebtedness secured, and any balance after paying the costs and expenses incident to the foreclosure and liquidating the debt to be paid over to defendant's wife, Clara B. Sisson. It appears from the uncontradicted proof that on May 5, 1905, defendant Harve Sisson, mortgagor, paid to Webster Sisson for himself and Henry Sisson, the mortgagees, the sum of $18 on the note or indebtedness therein described. This payment of $18 reduced the indebtedness mentioned to $300. Instead of crediting this payment of $18 on the original note, defendant Harve Sisson, one of the mortgagors, drew up a new note as of that date, May 5, 1905, for $300, the amount of the debt remaining unpaid in favor of Henry and Webster Sisson, and delivered the same to them. Upon receiving the new note for $300, Webster Sisson surrendered to Harve Sisson, the mortgagor, the original note of $315 with an understanding, as the evidence shows, that the lien of the mortgage should remain intact to the end of securing the amount evidenced by the renewal note. About a week after this occurrence, Webster Sisson reported the same to his brother, Henry, one of the mortgagees, who objected to it, and requested that Harve Sisson should either surrender the old note or make a new one for $315 as of date March 28, 1905, so as to conform in all respects to the note originally described in the mortgage, the payment of $18 to be credited thereon. Webster Sisson immediately communicated this request to Harve Sisson, and thereupon Harve Sisson and his wife Clara B., having destroyed the original note, executed a new one identical in date, amount, and in all other respects with that originally given and described in the mortgage. The $300 note was then surrendered to Harve Sisson, and it was...