Humphreys Savings Bank v. Cliff Carpenter
| Decision Date | 30 April 1923 |
| Citation | 250 S.W. 618,213 Mo.App. 390 |
| Parties | HUMPHREYS SAVINGS BANK, Appellant, v. CLIFF CARPENTER and A. W. HART, Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Sullivan County.--Hon. Fred Lamb Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
L. A Warden for appellant.
Calfee & House for respondents.
--This is an action to replevy an automobile. The cause was tried before the court without the aid of a jury. At the close of plaintiff's evidence the court sustained defendant's demurrer to the evidence and plaintiff has appealed.
The facts show that one Z. G. Beck on August 28, 1920, gave to the defendant Carpenter a chattel mortgage on the automobile in question. This mortgage was introduced in evidence and purported to secure the payment of two notes aggregating $ 900. This was a purchase money mortgage. It was not recorded in the county where Beck resided until October 22, 1920 which was after this suit was brought. On October 2, 1920, said Z. G. Beck and Myrtle Beck executed a chattel mortgage in favor of the plaintiff, describing various personal property including "one new Mitchell automobile, 1920 model horse power." The latter mortgage secured the mortgagors' note in the sum of $ 1148.70 and was recorded on the day of its execution in the county where the mortgagors resided. The automobile remained at all times in the possession of said Z. G. Beck until and subsequent to the execution of the latter mortgage when defendant Carpenter with two constables demanded possession of the automobile from the said Z. G. Beck, who turned it over to them.
On October 21, 1920, the automobile was in Carpenter's possession and plaintiff began this action, basing its right of possession upon its chattel mortgage. The said Beck at the trial testified that when he executed the chattel mortgage to the bank he was renewing a note at the bank and that the bank's officer asked him if he could give it other security and Beck said he had nothing except an automobile; that he had already mortgaged the automobile to the defendant Carpenter for $ 600. Beck testified that he never gave Carpenter a mortgage for $ 900. The officer of the bank said that he would take the automobile subject to Carpenter's mortgage. Beck further testified that the automobile he mortgaged to plaintiff was the same as the one he mortgaged to the defendant Carpenter and that he owned no other automobile. He did not tell the bank that Carpenter's mortgage was a purchase money mortgage. Whether the indebtedness to the bank was originally contracted to the bank by Beck before he executed Carpenter's mortgage is not shown.
We think that the court erred in sustaining the demurrer to the evidence. Plaintiff's chattel mortgage was superior to Carpenter's as the latter was not recorded in the proper county. [Sec. 2256, R. S. 1919; Reynolds v. Smith, 123 Mo.App. 229, 100 S.W. 535.]
It is contended that plaintiff's mortgage does not identify the property except to show that it was a Mitchell automobile 1920 model, of which there may have been thousands; that it does not give the number of the car nor where situated nor by whom owned. It may be that plaintiff's chattel mortgage does not contain a sufficient description of the subject of the mortgage if the rights of subsequent purchasers or mortgagees were involved. For in such cases the description of the property in the mortgage must be such that a third person, aided by inquiries that the instrument itself suggests, could identify the property. [Bozeman v. Fields, 44 Mo.App. 432, 435.] Plaintiff's mortgage was signed by Z. G. Beck and his wife and covered the only automobile that he owned. The residence of the Becks is given in the mortgage as Grundy County, Missouri. It was acknowledged and recorded in that county. It provided that if the property was removed "from its present location" it should be sold at a place named, which was in Grundy County. ...
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