Glasgow v. Ridgeley

• Decision Date: 31 October 1847
• Citation: 11 Mo. 34
• Parties: GLASGOW v. RIDGELEY & ALLEN.
• Court: Missouri Supreme Court

11 Mo. 34

GLASGOW

v.RIDGELEY & ALLEN.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING, for Appellant.

1. The first and second questions asked by plaintiffs in the first deposition of Willey were leading and improper. 2. That the notes given in evidence as having been secured by mortgage of Willey to Norman Cutter, were improperly admitted, not being the same described. 3. The court improperly admitted the second deposition of Willey in evidence; the same witness having been previously examined on the same matter by the same party, in his first deposition, which had been read. 2 J. J. Marsh. 236. 4. The questions in said second deposition were leading and improper. The first is leading, and also objectionable, as requiring a witness to testify as to documents not before him, and as to the identity of them. 5. The mortgages were improperly admitted in evidence, not having been sufficiently proved--the subscribing witness not having been examined or accounted for. 1 Greenl. Ev. § 569, p. 636. That instruments must be proved by subscribing witness, for the reason that a fact may be known to subscribing witness not known to obligor, &c. Ibid, §§ 570, 571, 572; 1 Starkie's Ev. 325. Where instrument purports to have subscribing witness, he must be called, or it must be shown that proof by him has become impossible. Ibid, 328-9. That if subscribing witness be dead, & c., proof of his hand is a sufficient proof of the instrument. Ibid, p. 320. Subscribing witness must be produced, and admission of party, or sworn admission in answer in chancery will not answer; and it holds in suits between third persons, as well as in suits in which party to instrument is party to suit, or whether instrument is foundation of action or collateral. That this strictness ought to be observed generally, and is undoubted law, see 3 Johns. 477; 11 Wend. 110; 3 Binney, 196; 8 East, 548; 4 East, 53; 6 N. Hamp. R. 561; 3 Cowen & Hill's Notes, 1264. The following cases are exactly in point: 9 Johns. 136; 5 Mo. R. 422; 4 Monroe, 39; Abbott v. Plumb, Doug. 216. 6. The first instruction given for the plaintiff below is erroneous, in this: that it assumes that the giving of a mortgage by a tenant, on whose goods the rent is a lien, divests the landlord's lien, if the goods are delivered to the mortgagee, though they still remain on the premises. 5 Cowen, 323, Reynolds v. Shaler. That landlord may follow and distrain mortgaged goods, acts of Assembly of 1842-3, p. 247, “An act concerning Landlords and Tenants in the County of St. Louis.” 7. The third instruction given for plaintiffs below is erroneous. It assumes the law to be, that if there be a rent certain reserved, yet it ceases to be a lien when other premises are leased to same tenant by same landlord, at an uncertain rent. It even goes farther, for, although the proof was that payments were made by Willey more than sufficient to cover all the rent of the additional premises, so that all that was due when the distress-warrant issued, was rent on the original lease, which was certain on the hypothesis of that instruction, and yet the jury are instructed there can be no seizure of the goods for rent. 8. The third instruction of plaintiffs below is erroneous. It directs the jury to find for plaintiffs the whole amount of the debt due to Cutter on his mortgage, not exceeding amount of money made by the sales of the property. Now, the mortgage to Cutter comprehends other property besides that which is embraced in the mortgage to Ridgeley & Allen, and this instruction insists that Ridgeley & Allen shall recover, in their names, in this suit, the proceeds of the sale of the property not included in their mortgage, and to which they had shown no right. 9. The first three of defendant's instructions were improperly refused, particularly the third, which asserted that the lien for rent, if any there was, was not divested by execution of the mortgages, if the goods still remained on the premises. 1 Wend. 307. That suspension of proceedings against tenant, under distress, does not deprive landlond of right to pursue the goods distrained. 5 Cowen, 323, Reynolds v. Thaler. 10. The last three instructions asked by defendant, and refused by the court, should have been given, and especially the last. 11. The new trial prayed for should have been granted, for the reasons stated in the motion, the last of which was, that the recovery was too large, and the bill of exceptions shows that the recovery was for many articles not embraced in either mortgage. Milburn's recovery is not allowed. 12. The 4th instruction given for plaintiff is incorrect, and ought to have been considered in its order. It declares that there is no lien for rent till the rent is due. It says that the right to distrain does not exist unless the rent was due before the mortgage was made. I refer to the act of Assembly above, of 1842-3, p. 247.

LESLIE & FIELD, for Appellees.

1. The mortgages were sufficiently proved without calling the subscribing witness. They were proved by the highest evidence, viz: the very person who made them. It is admitted that in many of the text books the rule is laid down in general and unqualified terms, that the subscribing witness must be called to prove the execution of an instrument, but all the cases, it is believed, will be fouud to be those where the instrument is sought to be proved against the party who made it, or where in other cases, some inferior proof is offered. But in no case like the present has it ever been decided, as is confidently believed, that the instrument was not sufficiently proved by the party himself. The cases are all collected in Cowen's Notes to Phill. Ev. 1264; 4 Bibb. 442. The reason that is sometimes given for requiring the production of the witness where the party has admitted the execution, i. e., that the witness may remember what the party has forgotten, is effectually exploded by this court, in Moss v. Anderson, 7 Mo. R. 337.

2. The mistake in the description of the notes in Cutter's mortgage, was properly explained by proof. 7 Cowen, 13; 18 Pick. 455; see the cases collected on this point: Cowen's Notes to Phill. Ev. 1424.

3. The objections taken to some questions in the depositions, that they were leading, ought not to be listened to, because no objection was made at the taking on that ground; and whenever an objection is raised to the mere form of a question, the adversary ought to be apprised at the time of that particular ground, so that he may vary the forin. Besides, it is insisted, that the questions are really not leading in their character. The instructions given by the court were correct; the first instruction declares the lien of the mortgage superior to the distress-warrant. The account for rent, on which the warrant was founded, is for one gross sum, from April 6, 1843, to April 6, 1844. There was no evidence of its being due at all, except such as was furnished by the settlement of Willey, and in that, it is treated, likewise, as a gross sum due for the year. The question arising on the face of the account addressed itself to the court, and no other decision could be made than that rent, which appeared by the landlord's affidavit to be due in April, must be postponed to mortgages made in March and January preceding. See the act in relation to Landlords and Tenants in St. Louis County, passed in 1842, giving the right to distrain only when rent is due. The first instruction may also be supported on the principle asserted in the case of Field v. Milburn, 9 Mo. R., for the lien of the landlord is not made at all exclusive by the law, and the property was actually taken into possession by the mortgagee before the lien was executed by a levy of the warrant. The second-instruction is justified by the plain language of the act. The right of distress only exists where the rent is ““certain.” See act 1842, relating of Landlords and Tenants; Valentine v. Jackson, 9 Wend. 302; 25 Wend. 443. Some of the sections of the Missouri act, and this in particular, are literally borrowed from the New York law. The third instruction is merely asserting the same principle in different circumstances. The fourth instruction follows the language of the act, and declares that the right to distrain does not arise till the rent was due. The 5th instruction lays down the rule as to the measure of damages. The first mortgagee after forfeiture became owner of the goods at law. After satisfying his own debt, he would be answerable over to the second mortgagee for any surplus in his hands, and if the goods were illegally taken from him, he may recover to the extent of the damages sustained by him individually, and by any other person whose interests he might represent. See a case in Massachusetts, in point; Chamberlain v. Shaw, 18 Pick, 278. The instructions asked by the defendant were all improper. 1. The landlord's warrant is assumed per se to be a sufficient justification for the seizure of the goods. But this cannot be so. The warrant, without the relation of landlord and tenant, the existence of a certain reservation of rent, and the same being due, is no better than waste paper. See 9 Wend. supra. 2. The second instruction is equally faulty, and for the same reason. 3. The third may or may not be true, but it has nothing to do with the question. The extent of the landlord's lien is of no importance; the only controversy is about the landlord's right to distrain under the actual circumstances of this case. 4, 5, 6. The last three instructions have been considered under the last instruction given by the court.

NAPTON, J.

This was an action of assumpsit for goods sold and delivered and money had and received. The plaintiffs had a verdict and judgment. Upon the trial it appeared that Walter Willey, on the 1st March, 1843, took possession of the Glasgow House, as tenant to the defendant, who was proprietor of the same, and continued to occupy it until...