Clayton v. Gentle

• Citation: 14 S.W.2d 672
• Decision Date: 20 February 1929
• Docket Number: No. 4449.,4449.
• Parties: CLAYTON v. GENTLE et al.
• Court: Court of Appeal of Missouri (US)

14 S.W.2d 672

CLAYTON v. GENTLE et al.

No. 4449.

Springfield Court of Appeals. Missouri.

February 20, 1929.

Rehearing Denied March 26, 1929.

Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.

Action by R. H. Clayton against E. L. Gentle and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Leo H. Johnson, of Neosho, for appellants.

O. R. Puckett, of Pineville, for respondent.

COX, P. J.

Action in replevin for possession or recovery of the value of "One South Bend Malleable Double Oven Steel Cook Range with Right End Fire Box now located in the kitchen of the Ginger Blue Lodge Hotel in said County and Township of the value of $230.00." Plaintiff recovered, and defendant appealed.

The case was tried before the court without a jury, and no declarations of law were asked or given. Under that state of facts there is but one question for us to determine, and that is whether the evidence will support the judgment.

It appears that Ginger Blue Lodge Hotel was a sort of summer resort and was incorporated in 1924. It was operated by Mr. Corkins. July 1 or 2, 1926, Mr. Corkins paid for, with his own funds, the stove or cooking range in question and put it in and used it in the hotel. Prior thereto, to wit, on September 5, 1925, the corporation executed a mortgage on all its real estate and in the same instrument a chattel mortgage on its personal property. The description of the personal property in the body of the mortgage following the description of the real estate is as follows: "Together with all hotel furnishings and equipment; furniture, including beds, springs, mattresses, chairs, dressers, linens; also cooking utensils, dishes, refrigerators, tables, silverware, laundry equipment including electric machines, electric irons, electric tubs or washers; also all other furnishings, fixtures, equipment used in connection with the operation of Ginger Blue Lodge, Inc., as a hotel or summer resort." The stove or range in controversy had not been purchased or placed in the hotel at that time, and it is conceded that the description just quoted does not cover after-acquired property. The contention that the mortgage did cover after-acquired property is based on a clause found at the end of the mortgage as follows: "All of said personal property being that described in said articles of incorporation and that subsequently added to said furnishings and equipment." The stove in question was not purchased by Mr. Corkins and placed in the hotel until July of the next year, but it is contended by appellants that the clause of the mortgage just quoted covered all after-acquired property, and, since the stove was put in the hotel by Mr. Corkins, no matter if he did buy and pay for it himself, it became covered by the mortgage as soon as it was put into the hotel. Plaintiff claims title under a bill of sale from Corkins. Defendants claim title under a foreclosure of the mortgage above described.

Plaintiff's title is shown to be regular on its face and must prevail unless defendants' claim is established by proof. There are two objections to defendants' claim of title; one is that the hotel corporation never owned the stove and could not convey it by mortgage, and the other is that the language of the mortgage itself does not cover property to be acquired after the mortgage was given.

No mortgage on after-acquired property conveys title to such property. All it does do is to convey an equitable lien, which attaches when the property is acquired. Wright v. Bircher, 72 Mo. 179, 37 Am. Rep. 433; Rutherford v. Stewart, 79 Mo. 216; (Mo. App.) Langford v. Fanning (J. I. Case Threshing Machine Co., Intervener), 7 S. W. (2d) 726, 728.

It is also true that the intent to cover after-acquired property must be clearly expressed, and nothing will be added by intendment. 11 C. J. 462. The language in this mortgage is: "All of said property being that described in said articles of incorporation and that subsequently added to said furnishings and equipment. (Italics are ours.) This description would cover all property described in the articles of incorporation and all that had been added since that time up to the date of the execution of the mortgage, but ...