Cook v. Wheeler

• Decision Date: 05 January 1920
• Docket Number: No. 13007.,13007.
• Citation: 218 S.W. 929
• Parties: COOK v. WHEELER et ux.
• Court: Missouri Court of Appeals

218 S.W. 929

COOK v. WHEELER et ux.

No. 13007.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Rehearing Denied January 26, 1920.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by S. C. Cook, trustee of the Beardsley Carriage Company, against Fred C. Wheeler and Maria E. Wheeler. Judgment for plaintiff, and defendants appeal. Affirmed.

James W. Boyd and Perry A. Brubaker, both of St. Joseph, for appellants.

Culver & Phillip, of St. Joseph, for respondent.

BLAND, J.

This is a suit in replevin. On August 23, 1913, defendant Fred C. Wheeler executed a note and chattel mortgage securing the same to J. C. Beardsley. The mortgage covered the property in controversy, and was recorded on August 29, 1911. Beardsley assigned the note to Beardsley Carriage Company, and on January 3, 1918, Beardsley Carriage Company executed a deed of trust to plaintiff as trustee for the benefit of its creditors, and by said deed transferred and assigned to plaintiff all notes and book accounts belonging to the Beardsley Carriage Company. The chattel mortgage provided that, should the mortgagor default in payment of the debt secured by it or remove the mortgaged property from the premises described in the mortgage (the evidence shows that the mortgagor had done both), the mortgagee should be entitled to possession.

Defendant Fred C. Wheeler filed his separate answer, which consisted of a general denial and an allegation that the property described in the petition belonged to his wife, the defendant Maria E. Wheeler. He further pleaded various transactions had with Beardsley Carriage Company, claiming by reason thereof he had paid the note in full. He also alleged that plaintiff was not interested in the property; that plaintiff "did not pay for it, and is acting for and in the interest of H. C. Beardsley and the Beardsley Carriage Company." Defendant Maria E. Wheeler filed her separate answer, which contained no general denial of the allegations in the petition, merely alleging that she was the owner of the property mentioned in the petition, and had been such owner for many years. Trial was had before a jury, and a verdict was rendered in favor of plaintiff.

Defendants' first point is that there is a fatal variance between the allegation and proof. The petition alleges that the Beardsley Carriage Company was entitled to immediate possession of the property on the ____day of January, 1918, and "that on said date said Beardsley Carriage Company sold, transferred, and assigned to the plaintiff herein by a deed of trust, executed by the defendant on that date to plaintiff herein," etc. (Italics ours.) It is claimed that the instrument introduced in evidence shows that the deed of trust was executed by the Beardsley Carriage Company and not by the defendant. (There were two defendants.) This is so clearly a clerical error in the petition that it requires no further attention from us. Williams v. St. Joseph Artesian Ice & Cold Storage Co., 214 S. W. 385.

The next point is that the defendant Fred C. Wheeler was adjudged a bankrupt on January 3, 1918, some three months prior to the institution of this suit, and that a trustee in bankruptcy had been appointed. Hence defendants urge that the jurisdiction in this case is in the United States District Court, and was not in the trial court. Defendant Fred C. Wheeler filed a plea in abatement, setting forth these facts, which was overruled. We think there is no merit in this contention. The petition does not allege that the defendant Fred C. Wheeler had at any time any title to the property. In his answer he alleges that the property was owned by his wife. In his schedule filed in bankruptcy he stated that he had no property of any kind, except household property not covered by this action. Defendants introduced testimony to show that Fred C. Wheeler executed to his wife two bills of sale, transferring all the property in controversy in this suit; one bill of sale, which covered the horses sued for, was dated May 24, 1915, and the other bill, covering the remainder of the property, was dated October 23, 1916. The undisputed evidence shows that Fred C. Wheeler had no interest and was claiming none in the property at the time he was adjudged a bankrupt, and we fail to see how the bankruptcy court could have any jurisdiction of this controversy.

Defendants contend that the petition was insufficient, in that it did not describe the property with sufficient particularity, and that the chattel mortgage is invalid for the same reason. The petition described the property as—

"Six head of horses, one cow, three farm wagons, one spring wagon, one new and spring top buggy, three rakes, two cultivators, two riding listers, two sulky plows, two walking plows, one McCormack mower, one McCormack binder, and all other tools and implements, all household goods, all harness, 300 bushels of corn, ten tons of hay, now at this time kept and contained on the farm known as the Watson farm, approximately two miles northeast of the city of St. Joseph, in Washington township, Buchanan county, Mo."

The chattel mortgage described the same property, except that the property was on the farm owned by H. C. Beardsley in Wayne township. It was shown that H. C. Beardsley owned only one farm in Wayne township, Buchanan county, and that it was the farm where the property was situated at the time the mortgage was executed. There was evidence that the property had been removed to the farm owned by a man of the name of Watson, in the French Bottoms, about two miles northwest of the city of St. Joseph. There is no contention on behalf of defendants that the property described was not originally on the farm described in the mortgage, or that it had not been moved to the Watson farm described in the petition, and was not at the latter place at the time this suit was brought. Undoubtedly the description of the property was sufficient. Cobbey on Replevin (2d Ed.) § 547; Bank v. Ragsdale, 158 Mo. 668, 59 S. W. 987, 81 Am. St. Rep. 332; Blurton v. Hansen, 135 Mo. App. 548, 116 S. W. 474. While the evidence was that the Watson farm was northwest of St. Joseph and not northeast, we do not think that this error made the description in the petition bad. The township in which the farm was located was given, and there is no claim that there were two Watson farms.

It is claimed that the evidence shows that the title to the property was in Mrs. Wheeler, and that she owned it at the time her husband gave the chattel mortgage. Wheeler admitted that he signed the note to Beardsley, but denied that he had signed any mortgage. The records of the recorder were introduced In evidence, showing such a mortgage had been given, but it was not found in the files of the recorder's office where such papers are kept. Wheeler's schedule in bankruptcy recited that the note he signed to Beardsley was a "secured" debt. There was evidence that Wheeler was in possession of and in control of the property when he gave the mortgage. Defendants introduced testimony tending to show that Mrs. Wheeler received $400 from her mother in 1907, that she paid for the horses, and that the rest of...