Harper v. Eubank

• Decision Date: 30 October 1888
• Citation: 32 Mo.App. 258
• Parties: EZRA HARPER, Appellant, v. JOHN EUBANK, Respondent.
• Court: Missouri Court of Appeals

32 Mo.App. 258

EZRA HARPER, Appellant, v. JOHN EUBANK, Respondent.

Court of Appeals of Missouri, St. Louis.

October 30, 1888

Appeal from the Knox Circuit Court. --HON. BEN. E. TURNER, Judge.

AFFIRMED.

O D. Jones, for the appellant.

The chattel mortgage is an acknowledgment in writing of the existence of the debt, and constitutes a promise to pay it. Warlick v. Peterson, 58 Mo. 408, 417; Maslin v Branham, 86 Mo. 643. The mortgage recites, acknowledges and promises to pay the debt in the most solemn form. But the debt was not due or payment could not be demanded of mortgageor until Harper had received all he could get of the estate. Delay in demand is contemplated by the terms of the contract. In such case, the statute does not commence to run until demand or time to make it expires. Jamison v Jamison, 72 Mo. 640. The statute of limitations of five years is not pleaded or relied upon in the cause. That of ten years is expressly in a written answer. " One who relies on the statute of limitations as a defense must plead the particular limitations which he claims." Vail v Jacobs, 7 Mo.App. 571. A plea of the statute of five years is not good for one of ten years. Hunter v. Hunter, 50 Mo. 445, 452. The new promise was made before the statute of five years had accrued and the chattel mortgage and its terms became an obligation of plaintiff to pay. The " property conveyed remains" in defendant's possession. The mortgage is not barred for any purpose. Mertens v. Kielman, 79 Mo. 412.

G. R. Balthrope, for the respondent.

Plaintiff's petition does not state facts sufficient to constitute a cause of action, for his complaint is based upon an instrument of writing purporting to be a mortgage of chattels to secure a debt existing under a previous contract, and does not set out the contract or refer to it; the mortgage is no part of the original contract creating the debt, but only an incident to the debt and original contract. His action should have been on the original contract. Car v. Hurlbut, 41 Mo. 264; Johnson v. Johnson, 81 Mo. 331. Plaintiff's claim is barred by the statute of limitations, for it was more than twelve years from the date of the mortgage (January 24, 1876) to the commencement of this action, and more than eight years after the estate of Colburn was settled or dismissed from the docket of the probate had elapsed before the institution of this suit, and defendant's plea of ten-year statute of limitations is good, as including the limitation of five years. Davis v. Hascall, 4 Mo. 58.

OPINION

THOMPSON J.

This action was commenced before a justice of the peace on the following complaint:

" Plaintiff states that, on the twenty-sixth day of January, 1876, defendant executed to him a contract and chattel mortgage, signed and sealed, by which he agreed to pay plaintiff the sum of one hundred and twenty-five dollars, if it was not paid to plaintiff out of the assets of the estate of John W. Colburn, deceased, and agreed to pay all of said sum that was not paid out of the assets of said estate, and he says said estate was settled in 1880, and was utterly insolvent, and paid no part of said sum, and it all now remains due and unpaid, as evidenced by said chattel mortgage and contract herewith filed. Plaintiff asks judgment, with interest thereon at the rate of six per cent. per annum until paid, and costs of suit."

The following is the exhibit filed with the complaint, being the instrument which is the foundation of the action:

" Know all men by these presents that I, John H. Eubank, have this day sold to Ezra Harper one two-horse hack, valued at one hundred and twenty-five dollars, and one set of double harness, full set, valued at twenty dollars. Whereas, Ezra Harper became security for John Eubank and John W. Colburn in the sum of one hundred and twenty-five dollars, and whereas, the said Harper was compelled to pay the same in the sum of one hundred and twenty-five dollars, and whereas, the said Harper has presented the same to the probate court, and had the same allowed against the estate of John W. Colburn, deceased. Now whatever sum the said Harper fails to obtain from said estate, this mortgage is made to secure, and now the said Harper may at any time when he finds how much the estate will pay, if the said John Eubank fails to pay the same to Harper and interest, then he, Harper, may take possession of said property and sell the same at auction in Edina, and out of the proceeds of said sale he shall pay the debt which said estate lacks in paying, and costs and charges of the sale, and balance, if any, shall be paid to Eubank. The property is in Eubank's possession--signed, sealed, acknowledged January 26, 1876, and duly recorded."

The defendant filed an answer, in which he mingled together a plea of the statute of limitations of ten years and a general demurrer,--setting up that the cause of action did not accrue within ten years, and also that the petition stated no cause of action.

A trial was had before the court without a jury. There was evidence tending to show that the plaintiff had received no money or other thing in payment of the debt described in the above chattel mortgage, from the estate of Colburn, or from the defendant, and that he had paid as surety the debt therein described.

" And here defendant admitted that the estate of John Colburn was totally insolvent at the time of the making of the chattel mortgage and contract in evidence and has been settled or disposed of and disappeared from the docket of the probate court in 1880, and plaintiff has received no money therefrom--which was all the evidence in the cause."

The plaintiff requested the following declarations of law, which the court refused to give:

" 1. That the chattel mortgage and contract offered in evidence is evidence in writing of a new promise of the defendant to pay the debt therein described and takes the debt out of the operation of the statute of limitations of five years, and that it appears on the

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