Evans-Snyder-Buell Co. v. Turner

• Decision Date: 20 April 1898
• Citation: 143 Mo. 638,45 S.W. 654
• Parties: EVANS-SNYDER-BUELL CO. v. TURNER.
• Court: Missouri Supreme Court

45 S.W. 654

143 Mo. 638

EVANS-SNYDER-BUELL CO. v. TURNER.

Supreme Court of Missouri, Division No. 2.

April 20, 1898.

CHATTEL MORTGAGE — SUFFICIENCY OF DESCRIPTION — APPEAL — REVIEW — RULINGS ON EVIDENCE.

1. Though a description in a chattel mortgage conveying cattle be vague and uncertain as to age, marks, and brands, where it locates them in a feed lot on a certain farm, and embraces all the cattle in the feed lot, it is sufficient to pass title against creditors of the mortgagor.

2. The assignee for benefit of creditors, being the representative of the assignor, is in no better position to contest the validity of a chattel mortgage, for vagueness of description, than is his assignor.

3. A ruling of a trial court is not subject to review where an exception is not saved.

4. A witness was asked, "Are you willing to tell all you know, Mr. D.?" Held, that a ruling of the court sustaining objection thereto was not a refusal to allow inquiry into the feelings of the witness.

5. Where instructions given for one party are not copied into the record, the presumption is that they covered every phase of the case, and that the trial court proceeded correctly, and a ruling refusing instructions for the other party will not be reversed.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by the Evans-Snyder-Buell Company against H. C. Turner. There was a judgment for plaintiff, and defendant appeals. Affirmed.

John M. Barker and Sam. W. Bickley, for appellant. H. M. Pollard, for respondent.

BURGESS, J.

This is an action, under the statute, for the claim and delivery of 160 head of native Missouri steers, of which plaintiff alleged that said company was entitled to possession, and that they were wrongfully detained by defendant at Audrain county, Mo. The case was tried to the court, a jury being waived. There was judgment in favor of plaintiff for about 158 head of cattle, and 1 cent damages. In due time, defendant filed his motion for a new trial, which was overruled, and he appealed.

In 1894, S. G. Elliott and R. McNama were partners doing business as stock traders under the name of Elliott & McNama. Elliott at that time resided in Callaway county, Mo., while McNama then resided, and has since resided, in Audrain county, Mo. On the 17th day of December, 1894, they had, on what is called the "Brown Farm," in Audrain county, a large number of Missouri steers, three years of age and upwards; and being indebted to plaintiffs, an Illinois corporation, in the sum of $4,500, Elliott on that day executed his individual promissory note to plaintiff for that sum, due on May 5, 1895, bearing 8 per cent. interest per annum, and at the same time executed to plaintiff a chattel mortgage on 160 head of said steers to secure the payment of said note. The mortgage contains the following provisions: "One hundred and sixty (160) head of native Missouri steer cattle, 3 years old and over, about one half (½) being dehorned; a few head having on them various brands. Said above enumerated and description being intended to cover and include, not only all the cattle owned by said mortgagor as aforesaid, but all additions and accretions thereto are especially included in and covered hereby. The cattle above described may have other brands or marks on them than those mentioned above, but those given are the holding brands or marks, and carry the title to the cattle. Now located in a feed lot on what is known as the `Brown Farm,' about 4 miles east of the town of Mexico, in Audrain county, Missouri. Said cattle are all the cattle owned by said mortgagor in said feed lot, or on said farm; and they are all the cattle there are in said feed lot, or on said farm, in the possession of the mortgagor." The mortgage was recorded in the recorder's office of Audrain county on the 18th day of December, 1894, and in the recorder's office in Callaway county on the 14th day of January, 1895. In the meantime, to wit, January 11, 1895, Elliott & McNama made an assignment of all their property to the defendant, Turner, for the benefit of their creditors. Plaintiff claimed the cattle under its chattel mortgage, while defendant claimed them under the deed of assignment for the benefit of the creditors of Elliott & McNama.

Defendant's first contention is that, as the possession of the cattle covered by the mortgage was not surrendered to plaintiff by the mortgagor at the time of the execution of the mortgage, it was void, because of the insufficiency of the description of the cattle. The rule with respect to the description of personal property in chattel mortgages, when the recording of the mortgage, under the statutes, takes the place of the actual delivery of the mortgaged property, in a contest with other creditors of, or purchasers from, the mortgagor, is that the property must be so described that such parties, by aid of the description of the property in the mortgage, together with such inquiries as are indicated thereby, may identify the particular property covered by the mortgage....