Fahy v. Gorden

• Decision Date: 17 March 1896
• Citation: 133 Mo. 414,34 S.W. 881
• Parties: FAHY et al. v. GORDEN, Sheriff.
• Court: Missouri Supreme Court

34 S.W. 881

133 Mo. 414

FAHY et al. v. GORDEN, Sheriff.

Supreme Court of Missouri.

March 17, 1896.

APPEAL — PRESUMPTIONS — CHATTEL MORTGAGE — EQUITY OF REDEMPTION — ATTACHMENT.

1. Where the record shows that the existence of the fact material to plaintiff's right of recovery was testified to by plaintiff and another, it will be presumed, in favor of the direction of a verdict for plaintiff, that such other witness was testifying for defendant, and that the fact was therefore established.

2. A sheriff cannot, by attaching personal property subject to a chattel mortgage, at the suit of an unsecured creditor of the mortgagor, acquire any right to the residue of the proceeds of a sale under the mortgage after the demands secured by the mortgage are satisfied.

In banc. Appeal from circuit court, Polk county; Argus Cox, Judge.

Action by John Fahy and others against Benjamin F. Gorden, sheriff, to recover possession, as chattel mortgagees, of goods held by defendant under a writ of attachment sued out by the mortgagor's creditors, and for damages for wrongful attachment. From a judgment for plaintiffs, defendant appeals. Affirmed.

Upton & Skinker, J. G. Simpson, and Rechow & Pufahl, for appellant. Goode & Cravens, for respondents.

BARCLAY, J.

This is an action in the nature of replevin for a large quantity of merchandise, the contents of a store. Plaintiffs assert title to it under a chattel mortgage, claiming to have taken possession also. Defendant was the sheriff of Polk county, who had the property in custody when the action was begun. In view of the nature of some of the questions mooted, it seems desirable to mention certain details of the proceedings.

The parties are "John Fahy, W. C. Kelton, Moses W. Kelton, R. A. Williams, Commercial Bank, Springfield, Mo., and Jake Marx," plaintiffs, against "Benjamin F. Gorden, sheriff of Polk county," defendant. The petition, after alleging incorporation of the bank, asserts that plaintiffs are owners, and entitled to possession, of specific personal property (describing it). and that the defendant, as sheriff, has seized the same under writs of attachment against Jacob A. Williams, and wrongfully detains the property from plaintiffs. The property in dispute is alleged to be of the value of $4,000. One thousand dollars damages for the taking and detention thereof are demanded, as well as judgment for recovery of the property, with costs. The petition is supplemented by the affidavit prescribed by the claim and delivery act (Rev. St. 1889, c. 137). Following the terms of that act, plaintiffs obtained an order of delivery, and got possession of the disputed property. Afterwards the latter was sold, as described further on. The answer denies the allegations of the petition, and then states that the described property belonged to J. A. Williams, and was in possession of defendant, as sheriff, under attachment writs in favor of creditors of Williams; "that plaintiff, as against these defendants, has no right, title, or interest in or to said property;" and then a claim is made for $300, damages for the taking of the property under the order of delivery, followed by a prayer for the return of the property. There was a trial, at the close of which the court gave an instruction directing the jury to find for plaintiffs, and to assess plaintiffs' damages for the taking and detention of the property at one cent. The jury found as directed, and judgment went to the same effect. Defendant appealed, after the necessary steps for that purpose.

The foremost question here is whether or not the trial court erred in giving the peremptory instruction for plaintiffs, over defendant's objection. The case was this: The plaintiff's offered in evidence a bill of sale, in the nature of a chattel mortgage, by Jacob A. Williams to the six plaintiffs, conveying the property in suit, to secure various items of indebtedness to the plaintiffs, respectively, or to secure payment of items for which they were sureties for said Jacob. The instrument was dated January 6, 1891, acknowledged the same day, and recorded in the records of Greene county the next day. That document is lengthy, but it need not be largely quoted. Its general effect was to convey title immediately to the grantees, to secure them in their demands against Jacob A. Williams, and it authorized them to take possession at any time in case they should "deem themselves insecure." Mr. Fahy, one of plaintiffs, testified that the mortgage was executed by the grantor at Springfield, Mo., and delivered to witness on the day of its date; that he had it recorded in Springfield, the next morning; that he and the other secured creditors decided to send a man down to Aldrich at once to take possession of the property; that the grantor resided in Springfield, where his family were, but he did business at Aldrich, in Polk county. He told witness he wanted to secure the creditors named. Accordingly, an attorney was consulted, and the mortgage was executed as described. Mr. Cox, an employé of witness, was sent on the morning of the 7th, to take possession of the goods for the mortgagees. Williams, the mortgagor, went along by the same train. The father of the mortgagor (who is named in the mortgage as one of the secured creditors) was found at Aldrich, in charge of the store, aided by a sister of the mortgagor. After the present action was begun, the goods were sold (part by auction, and part at retail) for about $3,175, by the mortgagees or their agent in charge. The amount realized is claimed by defendant to be in excess of the obligations secured by the mortgage. Mr. Cox testified for plaintiffs that he went to Aldrich, as stated by the first witness; took possession of the stock of goods, including groceries, boots, shoes, and clothing; that he had possession from Tuesday, January 7, 1891, until the following Sunday, when the attachment writs were levied by defendant, who took possession then. Witness locked the store on the 7th, having gotten the keys from the mortgagor, and he attended to the sale of the goods for plaintiffs' account after they had been retaken by the order of delivery in the present action. Mr. Cox did not have the mortgage with him when he went to Aldrich. That document was then in Springfield, presumably for the purpose of being recorded, as it was filed on the 7th of January, the day on which Mr. Cox started to Aldrich, at a very early hour in the morning. It was admitted that defendant, the sheriff, had the goods in charge when they were taken under the writ or order of delivery in the pending suit. Plaintiffs then rested. Defendant introduced evidence to show the items of indebtedness secured to the various plaintiffs by the mortgage, viz.: Note by mortgagor, $500, December 26, 1890, at 90 days, to the bank; note by mortgagor, $500, November 6, 1890, 120 days, to bank; note by mortgagor, $129.64, January 3, 1891, 1 day, to Kelton Stove Company; note by mortgagor, $790.05, January 5, 1891, 1 day, to Fahy; note by mortgagor, $188, December 1, 1888, demand, to R. A. Williams; note by mortgagor, $200, September 26, 1890, 120 days, to Bigbee, cashier; account, $48.60, June 2, 1890, to Marx. Defendant then read a deposition of Mr. Fahy, which requires no special notice, further than a remark that it is therein stated that Williams "resided in Springfield most of the time, but he lived in Fairplay about two or three months"; and that afterwards he was in business in Aldrich about three or more years; and that for the last year or two he had had personal charge of the store there. Defendant then introduced considerable evidence in regard to the change of possession of the property covered by the mortgage. Mr. Reed, who went with the sheriff to attach the goods, testified, for defendant, that, when they reached Aldrich, they went to Williams' house, and told...