Golden v. Moore
| Decision Date | 07 October 1907 |
| Citation | 104 S.W. 481,126 Mo.App. 518 |
| Parties | W. F. GOLDEN et al., Respondents, v. D. P. MOORE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Moniteau Circuit Court.--Hon. William H. Martin, Judge.
AFFIRMED.
Judgment affirmed.
R. M Embry for appellant.
(1) The description in the mortgage is wholly insufficient. The bank has no claim under such mortgage. The description is not only vague, but according to the evidence is absolutely incorrect. Young v. Bank, 97 Mo.App. 576; Chandler v West, 37 Mo.App. 631. (2) In a chattel mortgage after the note has become due and remains unpaid, the legal title to the property passes to the mortgagee, in fact the mortgagee has legal title at all times after mortgage is given. White v. Quinlan, 30 Mo.App. 54; s. c., 39 Mo.App. 356; Tobener v. Hassenbush, 56 Mo.App. 591; s. c., 42 Mo.App. 39. (3) In order to maintain this action it is necessary for plaintiffs to have both the right of possession as well as the right of property. Certainly the mortgagor and mortgagee cannot each have the right to possession at the same time. Each cannot have the legal title at the same time. If not this judgment should be reversed. Bank v. Mill & Land Co., 152 Mo. 145. (4) The Bank of Versailles was never in possession of the property, can it recover? Turley v. Tucker, 6 Mo. 583; Little v Chanvin, 1 Mo. 626; Craig v. Mason, 64 Mo.App. 342. (5) The petition did not state facts sufficient to constitute a cause of action. Bank v. Mill & Land Co., 152 Mo. 145.
A. L. Ross and Moore & Williams for respondent.
(1) If there was a misjoinder of parties plaintiff, it should have been raised by the answer, and not having been so raised was waived. R. S. 1899, sec. 602; Walker v. Deaver, 79 Mo. 672; House v. Lovell, 45 Mo. 381; Peckham v. Glass Co., 9 Mo.App. 459; Swinney v. Gouty, 83 Mo.App. 549; Anderson v. McPike, 83 Mo.App. 328; Horst Kolle v. Meyer, 50 Mo. 160. (2) There was no misjoinder of parties plaintiff. R. S. 1899, sec. 542; Bigler v. Leonori, 103 Mo.App. 131; Buddington v. Mastbrook, 17 Mo.App. 577. That the mortgagee may also maintain it is decided in Jones on Chat. Mort. (1 Ed.), sec. 490; Bank v. Metcalf, 29 Mo.App. 384; Geekie v. Klass, 16 Otto (U.S. S. C.), 27 L.Ed. 161. (3) The description of the mortgaged property was sufficient and defendant not being a creditor of the plaintiff, Golden, cannot question its sufficiency. Koch v. Branch, 44 Mo. 542; Kramer v. Faulkner, 9 Mo.App. 34; Thompson v. Irwin, 76 Mo.App. 418; Swim v. Wilson, 13 L. R. A. 605; Hindmarch v. Hoffman, 4 L. R. A. 368. (4) The court had the right to permit plaintiffs to amend their petition in furtherance of right and justice. At most the petition stated the cause of action defectively, and its amendment was in the discretion of the trial court, under section 660 and eighth and ninth clauses of section 672. Elfrank v. Seiler, 54 Mo. 136; Seckinger v. Philibert Co., 129 Mo. 590. The statute must be liberally construed in furtherance of right and justice. Sawyer v. Railroad, 156 Mo. 468; Crawford v. Railroad, 171 Mo. 68; Lamb v. Cable Co., 33 Mo.App. 492; State ex rel. v. Pace, 34 Mo.App. 458; Harlan v. Moore, 132 Mo. 483; Birdsal v. Davies, 58 Mo. 138; Merrielees v. Railroad, 163 Mo. 488; Bowie v. Kansas City, 51 Mo. 454; Case v. Fogg, 46 Mo. 47; Hardin v. Lee, 51 Mo. 244; R. S. 1899, sec. 804.
--Action in the nature of trover for the conversion of personal property. A jury was waived and plaintiff recovered judgment from which defendant appealed. It appears from the evidence that defendant innocently purchased a mule belonging to plaintiff Golden from a thief who had stolen it. Golden had mortgaged the animal to the plaintiff bank to secure a debt which was unpaid and past due at the time of the theft, but had retained possession of the property. Before the beginning of this action, defendant had sold and delivered the property to a stranger. Mortgagor and mortgagee join as parties plaintiff and thus state their cause of action in the petition on which the cause was tried: "That at the time hereinafter mentioned they (plaintiffs) were the owners of . . . one horse mule (here follows the description), and that on or about February 11, 1904, defendant wrongfully converted said mule to his own use to plaintiffs' damage," etc.
The sufficiency of this allegation to state a cause of action was not assailed in any manner before the trial, but defendant answered to the merits, and for the first time attacked the petition in the motion in arrest of judgment. On the hearing of that motion, plaintiffs, over the objection of defendant, were permitted to amend the petition by adding thereto the averment that plaintiffs were "entitled to and had the right to the possession of" the property in question. Following this amendment, the court overruled the motions for a new trial and in arrest of judgment. At the close of the evidence, defendant asked the court to declare as a matter of law that plaintiffs could not recover. In disposing of his contention that a declaration of this character should have been given, we will determine all of the questions of law presented.
It is argued that the petition failed to state a cause of action and that the learned trial judge erred in granting plaintiffs the right to amend on the hearing of the motion in arrest. The rule is well settled that in an action for the conversion of personal property, the failure to allege in the petition that the plaintiff had possession or the right to possession of the property sued for at the time of conversion, amounts to a failure to state a cause of action. [Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145, 53 S.W. 902; Bank v. Fisher, 55 Mo.App. 51; State to use, etc., v Bacon, 24 Mo.App. 403.] But, in our opinion, the omission of this averment was not an irremediable defect, and, in the interest of justice, it was proper for the court to permit the amendment to be made when his attention was first called to the imperfection, and the fact that the cause was then pending on motions for new trial and in arrest of judgment did not deprive the court of the right to exercise a discretion in the matter. Paraphrasing what was said in Case v. Fogg, 46 Mo. 44, the trial judge sitting as a jury must have found in order to give judgment for plaintiffs that they were entitled to the possession of the property at the time of the conversion, and the judgment will not be disturbed for the reason that the pleadings omitted any allegation or averment without proof of which the triers of the issue ought not to have given such a verdict. In Sawyer v. Railroad, 156 Mo. 468, the Supreme Court said: "The parties may try the cause as if the omitted averment was in the petition or their pleading, and it is perfectly competent for the court, even after verdict, to amend in accordance with the proofs." And in Elfrank v. Seiler, 54 Mo. 134: ...
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