Feurt v. Rowell

• Decision Date: 31 May 1876
• Parties: JOSEPH H. FEURT, Plaintiff in Error, v. LOREN G. ROWELL, Interpleader, etc., Defendant in Error.
• Court: Missouri Supreme Court

62 Mo. 524

JOSEPH H. FEURT, Plaintiff in Error,

v.LOREN G. ROWELL, Interpleader, etc., Defendant in Error.

Supreme Court of Missouri.

May Term, 1876.

Error to Daviess Circuit Court.

Conover & Hicklin, for Plaintiff in Error.

By reason of plaintiff's diligence and interpleader's negligence, the former obtained priority of lien, and was entitled to be first satisfied out of the property attached. (Bruce vs. Vogel, 38 Mo., 100; Sto. Eq., § 421.)

Shanklin, Low & McDougal, for Defendant in Error.

I. The deed was recorded in the county in which the mortgagor resided, and the removal of the property from the county to another did not destroy the lien of the mortgage. (Wagn. Stat., 281, § 8; Bevans vs. Bolton, 31 Mo., 439.) Nor would the removal out of the State of the mortgaged chattels invalidate the mortgage. (Smith vs. Hutchings, 30 Mo., 380.) The law presumes notice to all persons from the date of the filing of the mortgage for record. (Miller vs. Whitson, 40 Mo., 97.)

II. The possession of the mortgaged property by the mortgagor after the condition broken was not fraudulent. (Kansas City Sav. Ass. vs. Mastin, 61 Mo., 435; Miller vs. Bascom, 28 Mo., 352; Miller vs. Whitson, 40 Mo., 95; Howell vs. Bell, 59 Mo., 135.)

The creditor was not injured by the delay. (Bump Fraud. Con., 99; Frost vs. Mott, 34 N. Y., 253.)

WAGNER, Judge, delivered the opinion of the court.

The record discloses these facts. The plaintiff sued one Sweaney by attachment before a justice of the peace, and caused certain mules to be seized by virtue of the writ. Defendant Rowell filed an interplea claiming the mules. On the trial of the interplea before the justice, Rowell was defeated and appealed to the Circuit Court. On the trial there it was shown, that on the 17th day of December, 1874, Sweaney executed a chattel mortgage conveying the mules in controversy to Rowell to secure a note due in ninety days, which note was, as the mortgage recited, given as collateral security to idemnify Rowell for signing the note of Sweaney at bank.

On the 14th of March, 1875, and before the note in bank matured, Rowell, for the purpose of favoring Sweaney, and enabling him to pay off the debt, by a written endorsement on the note in bank upon which he was surety, consented that an extension of ninety days might be granted thereon, which was done. On or about the 17th day of June, 1875, Rowell paid off the note, on which he was surety for Sweaney. In the meanwhile, on or about the first of June, 1875, plaintiff sued out an attachment against Sweaney, who it seems had departed for Iowa, and followed him into Harrison county and brought the mules back into Daviess county, where the mules were seized under the writ of attachment as the property of Sweaney. At the time of the seizure, the mortgage was on record in Daviess county, and Sweaney was a resident of that county when the mortgage was made. The cause was tried before the court sitting as a jury, and for the interpleader the court gave declarations as follows: 1st. The fact, that the interpleader did not take immediate possession of the mules when the note became due, will not preclude his recovery. 2nd. The fact, that Sweaney was about to remove the mules out of the State will not avoid the lien of the mortgage.

The plaintiff asked three instructions, the substance of which was, that if the mortgage became due in March, 1875, and from that time until June, 1875, and until after the attachment in this cause was levied on the mules at the instance of the plaintiff, Sweaney was allowed to keep the mules in his possession, then the possession of the mules by Sweaney was, as against the plaintiff, fraudulent, and the judgment should be against the interpleader. The court refused plaintiff's instruction, and then rendered...