Frizzell v. Rundle
| Decision Date | 21 January 1890 |
| Citation | 12 S.W. 918 |
| Parties | FRIZZELL <I>v.</I> RUNDLE <I>et al.</I> |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Davidson county; WM. K. McALISTER, Judge.
Action by John R. Frizzell against I. T. Rundle & Co., to recover the value of chattels mortgaged to plaintiff by one Anglin, and sold for Anglin by defendants, as auctioneers. Plaintiff appeals from a judgment for the defendants.
Frizzell & Zarecor, for appellant. Bryan & Cartwright, for appellees.
One Anglin executed to Frizzell, the plaintiff, a mortgage upon his household furniture, to secure the latter as the surety of the mortgagor upon certain rent notes. The property mortgaged was in the residence of the mortgagor, and was to remain in his custody and possession until the maturity of the notes. It was stipulated that, should the mortgagor remove, or attempt to remove, the property, or attempt to sell same, then the mortgagee should have the right to take possession; and that in such event, or in case default was made in payment of the secured debt, Frizzell should sell said property, publicly or privately, and apply it to payment of debt. The mortgagor obtained consent of the mortgagee to a removal of the property from the residence in which it was to another part of the city, and to another house, upon the statement that he had rented another residence. In place of such a removal, he fraudulently took the mortgaged articles to the auction house of defendants, and caused them to be then sold at public sale. Rundle & Co. are regular auctioneers, and had no actual notice of the mortgage upon the property; and they paid over the proceeds of sale to Anglin before notice of Frizzell's right. Having sold the property for cash, and at a sale with many other articles of the same sort, and keeping no memorandum of the buyers, they are unable to state who became purchasers of the mortgaged property. Frizzell has sued them, upon these facts, in trover, or for a conversion. The mortgage made by Anglin was duly registered. This property was sold by defendants in the usual course of their business as auction commission merchants.
Unless the registration of the mortgage operates as constructive notice, they must be regarded as innocent agents or factors, who have secured the property in the regular course of their business, and sold it as agents for the one who had delivered it to them, and paid over the proceeds to their principal, without knowledge of any incumbrance on his title. The...
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...without a property interest in the goods. First National Bank of Pipestone v. Siman, 1937, 65 S.D. 514, 275 N.W. 347; Frizzell v. Rundle, 1890, 88 Tenn. 396, 12 S.W. 918; Greer v. Newland, 1904, 70 Kan. 315, 78 P. 835, 70 L.R.A. 554; Kearney v. Clutton, 1894, 101 Mich. 106, 59 N.W. 419. The......
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Michigan Nat. Bank v. Michigan Livestock Exchange, 81932
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