Fahy v. Gordon

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

34 S.W. 881

133 Mo. 414

Fahy et al. v. Gordon et al., Appellants

Supreme Court of Missouri

March 17, 1896

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

Rechow & Pufahl and Upton & Skinker for appellants.

(1) This being an action at law, and every material fact which the plaintiffs were required to prove to make out their case being disputed by the defendants, it was error for the court to take the case from the jury and instruct them to find the issues for the plaintiffs. "Whether the plaintiffs were entitled to recover, depended upon the sufficiency and weight of the evidence. It was not for the court but the jury to pass upon the sufficiency and weight of the evidence." De Graw v. Prior, 53 Mo. 313; Paxson v Pierce, 25 Mo.App. 59; Desberger v. Harrington, 28 Mo.App. 632. (2) Slight circumstances, no matter how trivial, are often sufficient to establish fraud. We submit that in this case there was ample evidence to justify the jury in finding the mortgage fraudulent. Burgert v Borcher, 59 Mo. 80; Van Raalte v. Harrington, 101 Mo. 602; Fredrick v. Allgaier, 88 Mo. 598. (3) The plaintiffs were not entitled, in any event, to recover more than the value of their special interest in the property in controversy. And as it was admitted on the trial that they had sold the property for about $ 700 more than the amount of their mortgage, the instruction of the court requiring the jury to find for the plaintiffs for all of the property was clearly erroneous. Defendants were entitled to this surplus under any view of the evidence. "In replevin the court should make an equitable and complete adjustment of all the rights of the parties to the action." Dilworth v McKelvey, 30 Mo. 149; Boutell v. Warne, 62 Mo. 350; Jones v. Evans, 62 Mo. 382; Daugherty v. Cooper, 77 Mo. 535; Dodd, Brown & Co. v. Wilson, 26 Mo.App. 462; Hickman v. Dill, 32 Mo.App. 509; Baldridge v. Dawson, 39 Mo.App. 527. All of the above cases establish the doctrine that when, on the trial of a replevin suit, it is developed that plaintiff is not the general owner, but has only a special interest, such as mortgagee, pledgee, or part owner, and the defendant has an interest in the property, the court will apportion the property, if it be susceptible thereof, and proceed to settle all the rights, equities, and priorities of the parties.

Goode & Cravens for respondent.

(1) The plaintiffs were entitled to a peremptory instruction to the jury to return a verdict in their favor. The evidence showed without any conflict that the plaintiffs were entitled to possession of the property sued for. The answer did not even plead fraud in the mortgage, or make any point against the plaintiffs' right, except a general denial. Clemen's Adm'r v. Dryden's Adm'r, 6 Mo.App. 597. (2) The chattel mortgage was properly recorded in Greene county, since the place to put a chattel mortgage to record is in the county of the mortgagor's residence. R. S., sec. 5176; Bevins v. Bolton, 31 Mo. 437. (3) First. If the mortgagees secured open and notorious possession before the writs of attachment were levied, they were entitled to hold the property against attaching creditors, regardless of whether the instrument was recorded at all or not. R. S. 1889, sec. 5176; State ex rel. v. Cooper, 79 Mo. 464; Jones on Chattel Mort. [3 Ed.], sec. 178. Second. Possession was voluntarily delivered by Williams, and if it had not been, the mortgagees were entitled to take it on several grounds; notably, because several of the debts were due at the time, and, by the terms of the instrument this rendered them all due, for the purpose of making the mortgage available. Besides, the mortgage contained a provision that whenever the mortgagees deemed themselves insecure, they might take possession, and the testimony shows that they did consider themselves insecure at the time. Such provision authorizes a mortgagee to take possession whenever in his judgment he thinks it best. Jones on Chattel Mort. [3 Ed.], sec. 431; Cline v. Libby, 46 Wis. 123; Huebner v. Keobke, 42 Wis. 319; Smith v. Post, 1 Hun (N. Y.), 516; Fox v. Kitton, 19 Ill. 519; Evans v. Graham, 50 Wis. 450; Braley v. Byrnes, 21 Minn. 483; Werner v. Bergman, 28 Kan. 60; Gage v. Wayland, 67 Wis. 566; Bank v. Taylor, 67 Iowa 572; Roy v. Kings, 96 Ill. 361. Third. Such clause vests in the mortgagee an absolute discretion to take possession whenever he may deem himself insecure, and the exercise of the right does not depend on whether there is reasonable ground for his believing himself insecure. Jones on Chattel Mort., supra. Fourth. Being so entitled, he may maintain an action of replevin against anyone who detains the property, or trover for the conversion, and may take possession without a previous demand. Frisbee v. Langworthy, 11 Wis. 375; Welch v. Sackett, 12 Wis. 243; Grove v. Wise, 39 Mich. 161; Harvey v. McAdams, 32 Mich. 472; Huggans v. Fryer, 1 Lans. (N. Y.) 276. (4) First. Mortgagees of personalty are entitled to possession, and may maintain replevin after condition broken against the mortgagor, a stranger to the mortgage, or a sheriff seizing the property under writ of attachment or execution. Turner v. Langdon, 85 Mo. 438; State to use v. Carroll, 24 Mo.App. 358; Mfg. Co. v. Chrisman, 28 Mo.App. 308; Keck v. Fisher, 58 Mo. 532; Thompson v. Foerstel, 10 Mo.App. 290; Wangler v. Franklin, 70 Mo. 659; St. Louis Drug Co. v. Robinson, 81 Mo. 18. Second. And in such case, where the officer seizes goods in possession of the mortgagees, they may maintain replevin against him for their recovery, whether the mortgage debt be due or not. Hausmann v. Hope, 20 Mo.App. 193. (5) First. Defendants are not entitled to have the surplus left after paying the mortgage debts out of the proceeds of the property adjudged to them in this case. Unless the mortgage was fraudulent so as to give them a lien on the property superior to it, they acquired no lien on anything at all by their attachments, for when the mortgagee is in possession after condition broken, the mortgagor has no such interest in the property as is subject to attachment or execution. State to use v. Carroll, 24 Mo.App. 358; Brown v. Hawkins, 54 Mo.App. 75; Bank v. Metcalf, 29 Mo.App. 391; Barnett v. Timberlake, 57 Mo. 501; Mattison v. Baucus, 1 N.Y. 293; McDonald v. Beemans, 58 N.W. 704. Second. In this state the mortgagee, in such cases, has always been held to be the absolute owner of the property. King v. Bell, 8 Mo. 332; Yeldell v. Stemmons, 15 Mo. 443; Boyce, Adm'r, v. Smith's Adm'r, 16 Mo. 317; Rogers v. Lidwell, 8 Mo.App. 600. Third. The mortgagee being in possession of the mortgaged property, the creditors of the mortgagor have no right to interrupt that possession without first satisfying the mortgage debt. Hausmann v. Hope, 20 Mo.App. 193. Fourth. Creditors can not reach the mortgagor's equity of redemption in a chattel by attaching the chattel. Poundstone v. Holt, 37 P. 35, Rep.

Barclay, J. Chief Justice Brace and Judges Gantt, Macfarlane, Burgess, and Robinson, concur; Judge Sherwood taking no part.

OPINION

In Banc.

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, Missouri, 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. 1,000 dollars damages for the taking and detention thereof are demanded, as well as judgment for the recovery of the property, with costs.

The petition is supplemented by the affidavit prescribed by the claim and delivery act. Chap. 137, R. S. 1889.

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 plaintiffs 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...