Hutchins-Hanks Coal Co. v. Walnut Land & Coal Co.

• Decision Date: 24 January 1910
• Citation: 141 Mo. App. 251,124 S.W. 1098
• Parties: HUTCHINS-HANKS COAL CO. v. WALNUT LAND & COAL CO.
• Court: Missouri Court of Appeals

124 S.W. 1098

141 Mo. App. 251

HUTCHINS-HANKS COAL CO. v. WALNUT LAND & COAL CO.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

1. CHATTEL MORTGAGES (§ 258) — POWER OF SALE — EXECUTION.

Power of sale contained in a chattel mortgage, in order to pass title to the purchaser, must be strictly followed.

2. CHATTEL MORTGAGES (§ 249) — JOINT MORTGAGEE — JOINT OR SEPARATE DEBTS — FORECLOSURE.

Where a chattel mortgage is given to secure separate debts of two or more mortgagees, each mortgagee may enforce his rights in his own name; but, if the mortgage is not given to secure a separate indebtedness, a foreclosure by one of the mortgagees only is invalid, since, if the property is forfeited by a single default, it is forfeited to the mortgagees jointly.

3. CHATTEL MORTGAGES (§ 295) — FORECLOSURE — EFFECTS — WAIVER.

Where a chattel mortgagor joined with one of the mortgagees in purchasing property on foreclosure, the mortgagor waived any right that he had to question the proceedings, having thereby lost his equity of redemption.

4. CHATTEL MORTGAGES (§ 267) — FORECLOSURE — JOINT MORTGAGEES — INTEREST.

Where an entire debt secured by a chattel mortgage was owing to one of several mortgagees, the others, having no real interest in the property, could not complain of foreclosure proceedings.

Appeal from Circuit Court, Bates County; Chas. A. Denton, Judge.

Action by the Hutchins-Hanks Coal Company against the Walnut Land & Coal Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Silas W. Dooley, for appellant. J. S. Francisco, for respondent.

BROADDUS, P. J.

The plaintiff's action is based upon a bill of sale whereby defendant, in April, 1905, sold to plaintiff certain personal property, used in mining operations, for the consideration of $500. The bill of sale contained the following clause: "The said grantor covenants that said property is free from incumbrance, and that it has the lawful right to sell and dispose of the same, and that it will warrant and defend the title thereto against all claimants whatever." Plaintiff alleges that at the time said bill of sale was executed there was a chattel mortgage on said property, given by D. L. Hughes to defendant and to F. J. Tygard and H. H. Haverly to secure certain advances made and to be made by them to the said Hughes. The mortgage provides that the property shall remain in the possession of the mortgagor until default be made, and that, "upon taking possession of said property, or any part thereof, either in case of default or as above provided, the said parties above named, or their legal representative, may proceed to sell the same, or any part thereof, at public auction, to the highest bidder for cash at Foster, Mo., in the _____ of _____, county of Bates, and state of Missouri, first having given five days' public notice of the time, terms, and place of sale, and property to be sold," etc. The debt was not paid...