Green Hills Production Credit Ass'n v. R & M Porter Farms, Inc., WD

• Decision Date: 08 July 1986
• Docket Number: No. WD,WD
• Parties: GREEN HILLS PRODUCTION CREDIT ASSOCIATION, Respondent, v. R & M PORTER FARMS, INC., et al., Appellants. 37145.
• Court: Missouri Court of Appeals

Page 296

716 S.W.2d 296

GREEN HILLS PRODUCTION CREDIT ASSOCIATION, Respondent, v. R & M PORTER FARMS, INC., et al., Appellants.

No. WD 37145.

Missouri Court of Appeals Western District.

July 8, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 28, 1986.

Application to Transfer Denied Oct. 14, 1986.

Ross H. Porter, Dorothy L. Porter and Marvin Porter pro se.

Jim Tom Reid, Kansas City, for respondent; Shockley, Reid & Koger, of counsel.

Before MANFORD, P.J., and PRITCHARD and TURNAGE, JJ.

PRITCHARD, Judge.

This action began upon Green Hills' petition in replevin upon which it was granted summary judgment.

On June 8, 1984, Green Hills filed its petition in replevin and obtained an order of delivery and writ of replevin, which was first directed to the Sheriff of Daviess County. By amendment on the same day, the order and writ were issued to the sheriff of Caldwell County. The trial court approved a bond of $79,000 which was twice the alleged value of the property sought to be replevined.

Green Hills alleged that the corporation and the Porters (Ross H., Dorothy L. and Marvin J. Porter, who appear here pro se) executed and delivered to it for value on January 30, 1980, a promissory note for $73,685, and that they all for value executed and delivered these promissory notes: April 23, 1982, $51,340; July 13, 1982, $56,884; February 17, 1982, $441,652.21; February 8, 1983, $23,800; and January 5, 1983, $50,065. To secure payment, appellants gave a security interest in personal property, consisting of farm equipment, livestock and crops, and also a mortgage on the Porter farm which was foreclosed and sold on January 27, 1984, for $200,000 which was credited on the debt. It was alleged that there remained an outstanding balance, and the notes were in default.

In Point II, appellants contend that the grant of summary judgment against them was improper because Green Hills failed to show that no genuine issues of fact existed concerning valuation of the property, execution and default on promissory notes, and adequacy of consideration.

Two matters are for review of a summary judgment: First, whether there is a genuine issue of material fact requiring a trial, and second, whether the prevailing party was entitled to judgment as a matter of law. Butcher v. Ramsey Corp., 628 S.W.2d 912, 914 (Mo.App.1982). Plaintiff, in a replevin suit, must allege and prove his right to immediate possession of the property at the time suit was filed, and that defendant was then wrongfully detaining the same. Fawley v. Bailey, 512 S.W.2d 477, 479 [3-5] (Mo.App.1974); Monarch Loan Co. v. Anderson Transmission Service, 361 S.W.2d 328, 331[2, 3] (Mo.App.1962). It was held in Auffenberg v. Hafley, 457 S.W.2d 929, 935[9-11] (Mo.App.1970), that the execution of a note secured by a chattel mortgage (now called a security interest) with right of possession on default gives the promisee a special interest in the mortgaged property which is sufficient to sustain an action in replevin.

As to the valuation of the property, the purpose of the Rule 99.03(c) requirement that the actual value of the property be stated in the affidavit is for the court to determine if the amount of the replevin bond is sufficient. Here, Green Hills alleged in its petition a description of and value of the property sought to be replevined as required by Rule 99.03, and as noted, bond was filed in an amount double the stated value of the property. The trial court noted that the previous circuit judge, Honorable Kenneth R. Lewis, had approved the bond, and in this hearing, requested by appellants, the present circuit judge likewise approved the bond. Appellants seem to be contending that the bond amount was insufficient. In Auffenberg v. Hafley, 457 S.W.2d 929, 936[19-23] (Mo.App.1970), it was said, "[P]roperty seized under a writ of replevin and delivered to a plaintiff, remains in custodia legis, with no power on the part of plaintiff to sell while the suit is pending. * * * We should further point out that the giving of the statutory bond merely determines the right of custody of property pending the outcome of the suit in replevin. It does not determine the ultimate rights of the parties to possession of the property. * * * Improper disposition of the property or inadequacy of the bond does not affect the ultimate rights of the parties in the replevin action and those irregularities pointed out here cannot be raised to reverse the judgment of the court which is based upon those ultimate rights." The valuation of the property here, upon which the amount of bond was based, is not a material fact that bears on the ultimate right to possession which is the issue in this replevin action. The contention, therefore, may not be used as a basis to reverse the summary judgment.

Appellants admitted in their answer to Green Hills' petition that they executed and delivered the promissory notes in question. Furthermore, each appellant testified in deposition that the notes were executed by them. Admissions were also made as to the giving of the security interest.

As to default in the payment of the promissory notes, appellants stated in their counterclaim that they were "delinquent on their loans". In their answer, they denied the default in the notes, but stated that they refused to pay on them. They thus effectively admitted that they were not making the required payments.

Appellants claim that Green Hills did not give value for the promissory notes since it supplied them with bank credit instead of actual money. They also asserted the contention in a counterclaim for fraud. Appellants' argument is not clear, but they appear to claim that Green Hills fraudulently and illegally created an account on a bookkeeping ledger which resulted in money being loaned to them that did not exist. Marvin Porter acknowledged in his deposition that Green Hills' check was sent to either the Farmers State...