Cotton v. Arnold

• Decision Date: 04 June 1906
• Citation: 118 Mo. App. 596,95 S.W. 280
• Parties: COTTON v. ARNOLD.
• Court: Missouri Court of Appeals

95 S.W. 280

118 Mo. App. 596

COTTON v. ARNOLD.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. ANIMALS—AGISTMENT—LIEN.

An agistment under Rev. St. 1899, § 4228, giving a lien for keeping animals is a species of bailment, and cannot exist without the possession of the animals being left with the bailee.

2. CHATTEL MORTGAGES—LIEN — PRIORITIES — PLEDGES—POSSESSION—NECESSITY.

A person claiming chattels as a pledge must, in order to give his lien a priority over the lien of a subsequent mortgagee from the pledgor, prove that his possession of the chattels accompanied the pledge; possession by the pledgee being essential to the existence of the lien.

3. CHATTEL MORTGAGES—LIENS—PRIORITIES—AGISTER'S LIEN.

A person rented a pasture by the acre, and its possession and control was turned over to him. He placed his own cattle in the pasture. The owner of the pasture rendered slight service in the care of the animals under a subsequent arrangement. Held, that the possession and control of the cattle as well as that of the pasture was in the tenant, and the owner of the pasture had no lien on the cattle for the pasturage, either under the statute giving a lien for keeping animals, or under the claim of a pledge, as against a mortgagee in a mortgage executed by the owner of the cattle.

4. SAME—ACTION FOR POSSESSION—PETITION —SUFFICIENCY.

A petition in replevin alleged that at the time of the wrongful taking, plaintiff by virtue of a chattel mortgage was in possession, and was the absolute owner and lawfully entitled to the possession of the chattels, sufficiently shows that the mortgagor at the time of the execution of the mortgage, was the owner of the chattels.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by Julius Cotton against Joseph Arnold. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John Cashman, for appellant. Barnett & Barnett, for respondent.

JOHNSON, J.

Plaintiff sued in replevin to recover the possession of certain cattle. He alleged in the petition that on November 16, 1904, "he was the absolute owner and lawfully entitled to the possession" of the property, and that on said date defendant "wrongfully took said property from the possession of plaintiff." He further pleaded the source of his title; i. e., that he held two chattel mortgages executed and delivered to him by a Mr. Corbett conveying the cattle in question—the first of which was executed on April 15, 1903, filed May 11 1903, and secured a debt of $570; and the second was executed May 28, 1904, filed May 31st, and secured a debt of $476.75. Then followed the averment that "Corbett failed to keep the conditions of either of said mortgages and, having so failed, this plaintiff was compelled to and did declare a forfeiture to him of the property described in each of said mortgages, and prior to the 16th day of November, 1904, had taken possession of all of the property and cattle by virtue of said mortgages." The answer, in addition to a general denial, contains an averment that defendant "is lawfully entitled to the possession of all said property and demands a return thereof." The judgment was for defendant and plaintiff appealed.

Defendant, as a tenant, was in the possession of a farm of 200 acres in Pettis county and was living thereon. In the farm, about one-fourth of a mile south of defendant's dwelling house, was a pasture containing 30 acres. Early in April, 1904, plaintiff and defendant met on the street in Sedalia and a conversation ensued between them relative to the renting of the pasture. This is defendant's version of what occurred. "He (Mr. Corbett) asked me if I had a pasture to rent, and I told him, `yes, sir,' and he wanted to know how many acres there was, and I said it was 30. * * * I told him I wanted $2.75 an acre, and I told him how the grass was, and he said if it was satisfactory it was a trade. He came out on the Sabbath Day and looked at the pasture, and said it was a trade, and the next week he drove his cattle in. * * * He asked me how long he could have it, and I told him as long as the grass was there. * * * He said he didn't have the money to pay for it (the rent) now, he was hard up, and I said, `I suppose the stock stands good for the pasturage until it is paid,' and he said, `Yes, sir,' the stock stands good for it; 18 or 20 head I will leave in there to pay for the pasture," On cross-examination, defendant admitted that plaintiff was to have full control over the pasture. Mr. Corbett testified that he was to pay $2.75 per acre for the use of the pasture during the grazing season, but denied that he agreed that his cattle should "stand good for the rent." Plaintiff had no knowledge that defendant claimed a lien on the cattle under an agreement with Corbett, but was informed by Corbett when the second mortgage was executed that the pasture was rented by the acre. Mr. Corbett placed some 21 head of his own cattle in the pasture, and also received there...