First Nat. Bank v. Ragsdale

• Citation: 59 S.W. 987,158 Mo. 668
• Court: United States State Supreme Court of Missouri
• Decision Date: 11 December 1900
• Parties: FIRST NAT. BANK OF MEXICO v. RAGSDALE.

59 S.W. 987

158 Mo. 668

FIRST NAT. BANK OF MEXICO v. RAGSDALE.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

REPLEVIN — PLEADING — PETITION — MORTGAGED PROPERTY — PARTIES — REAL PARTY IN INTEREST — CHATTEL MORTGAGE — DESCRIPTION OF PROPERTY — SUFFICIENCY — ESTOPPEL — PLEADING AND PROOF — FACT ADMITTED BY ANSWER.

1. The owner of cattle executed a note and mortgage thereon to defendant, a nominal mortgagee; and, indorsing on the note the name of the latter, to whose order it was made payable, he put the note and mortgage on the market, and plaintiff became a bona fide purchaser thereof. Held that, as against the latter, the mortgagor was estopped to say that the indorsement was not genuine, and plaintiff was entitled to all the rights of an original mortgagee.

2. In replevin by plaintiff against defendant to recover the mortgaged property, he could not anticipate that an attempt to impeach the indorsement would be made by the mortgagor, or any one depending on him, and hence was not required to plead the facts as an estoppel against it.

3. In replevin by plaintiff against defendant to recover the mortgaged property, proof by him that, after defendant was informed of the mortgage and the unauthorized use of his name in the transaction, he ratified it, was immaterial, as long as plaintiff only claimed the title of the mortgagor.

4. Under Rev. St. 1899, § 540, providing that every action shall be prosecuted in the name of the real party in interest, one entitled to a beneficial interest in a chattel mortgage may bring in his own name an action based thereon, though the mortgage has not in fact been legally assigned to him.

5. A description of cattle in a mortgage as "one hundred and twenty head of feeding cattle, now on feed in A. county, Mo.," is sufficient; it appearing that such a lot in that county belonged to the mortgagor when the mortgage was made, and there being nothing to show that he had another lot answering the description.

6. A petition in replevin is sufficient if it avers that plaintiff is the owner and lawfully entitled to possession of the property.

7. Plaintiff need not prove a fact admitted by the answer.

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

Replevin by the First National Bank of Mexico, Mo., against Clarence C. Ragsdale. From a judgment for defendant, plaintiff appeals. Reversed.

W. W. Fry and W. M. Williams, for appellant. George Robertson, for respondent.

VALLIANT, J.

This is an action in replevin for 120 head of cattle. The title asserted by plaintiff is founded on a chattel mortgage executed by Crockett B. Ragsdale, brother to defendant, Clarence C. Ragsdale, out of whose possession the cattle were taken by the sheriff under the writ. Upon the trial, when the plaintiff offered the mortgage in evidence, it was, on objection of defendant, excluded by the court; and judgment for defendant necessarily followed that ruling, and the plaintiff appeals. The only question for our consideration is as to the correctness of that ruling.

There was testimony tending to show that the cattle were the property of Crockett Ragsdale, the mortgagor, and were at the date of the mortgage on pasture in Audrain county, but were about April 1, 1896, removed to a pasture in Monroe county. The evidence that the cattle were the property of Crockett Ragsdale is contained in his deposition, and in the admissions to that effect by the defendant to the witnesses Latimer, Wilfley, and Gentry. We are not concerned with the matter of the weight to be given this evidence. It is sufficient for our present purpose that it tends to prove the fact. The instrument in question was in the ordinary form of a chattel mortgage, dated December 13, 1895, made and signed by Crockett B Ragsdale, purporting to convey to the defendant, Clarence C. Ragsdale, "one hundred and twenty head of feeding cattle now on feed in Audrain county, Mo.," to secure a note of same date for $3,500, payable May 1, 1896, to the order of C. C. Ragsdale. This note was not made to evidence a debt owing by Crockett to Clarence, but for the purpose of raising the money on it in bank, as was done. The note and mortgage were executed at Hannibal without the knowledge of Clarence, and were mailed by the maker to W. A. Latimer, at Sedalia, to whom Crockett was indebted to an amount of over $2,000, with the request that he (Latimer) indorse the note and get it discounted, pay himself out of the proceeds, and remit the balance to him (Crockett). Before mailing the papers to Latimer, Crockett indorsed the name of his brother Clarence on the note without the knowledge of Clarence. Latimer indorsed the note and sent it to a broker in St. Louis to be sold, and it was, through that broker, sold to the plaintiff in this case, the First National Bank of Mexico. Latimer sent the mortgage to Audrain county to be recorded, and that was done. The broker who sold the note sent the proceeds, amounting, with interest, to something over $3,500, to Latimer, who deducted the amount that Crockett was owing him, and remitted the balance, $1,175, to Crockett, who deposited it in a bank at Perry to the credit of Clarence; and there was testimony tending to show that it was used in part payment for the cattle in question, which had previously been bought or negotiated for. There were other facts brought out in the evidence, but they are of a character chiefly to influence the mind in weighing the evidence as to some of the facts above stated, and it will not be necessary to set them out here. Enough is stated to enable us to judge of the correctness of the ruling of the trial court in excluding the mortgage from evidence. The trial court ruled that inasmuch as the note was payable to the order of Clarence, and he was the mortgagee, and the note was never indorsed by him, therefore the legal title to the cattle was, by force of the mortgage, in Clarence, and that, if the plaintiff had any right under the mortgage, "it needed the interposition of a court of equity to give it force," and for that reason excluded it as evidence.

It does not appear from the evidence, and we do not understand that it is now claimed, that Clarence had any real interest in the note or mortgage, or that he claims title to the cattle by virtue of the mortgage. Crockett owed him no debt, — at least, none so far as the evidence shows. There was nothing, therefore, upon which to base a valid mortgage from Crockett to Clarence, and there is nothing on which to predicate a claim by Clarence through the mortgage. The only connection he has in it is the...