Ingals v. Ferguson

• Decision Date: 23 March 1897
• Parties: Ingals, Appellant, v. Ferguson; Alexander, Administratrix
• Court: Missouri Supreme Court

39 S.W. 801

138 Mo. 358

Ingals, Appellant, v. Ferguson; Alexander, Administratrix

Supreme Court of Missouri, Second Division

March 23, 1897

Certified from St. Louis Court of Appeals.

Judgment of circuit court affirmed.

George S. Grover for appellant.

(1) The plaintiff was entitled to recover in this action, because the animal in question was clearly partnership or joint property and, therefore, one of the partners, or joint owners, the husband, had a perfect right to dispose of it. Secs. 6864 and 6869, R. S. Mo. 1889; Picotte v. Cooley, 10 Mo. 313; Childress v. Cutter, 16 Mo. 24; 3 Am. and Eng. Ency. Law, p. 358; Lindell v. McNair, 4 Mo. 380; 9 Am. and Eng. Ency. Law, p. 840; Woodford v. Stephens, 51 Mo 443; Kinealy v. Macklin, 89 Mo. 433; Weil v. Simmons, 66 Mo. 617; Sloan v. Torry, 78 Mo. 623; McCoy v. Hyatt, 80 Mo. 130; McFerran v. Kinney, 22 Mo.App. 554; Hemelreich v. Carlos, 24 Mo.App. 264; Wortman v. Price, 47 Ill. 22; Stewart on Husband and Wife, sec. 480, and cases cited; In re Kinkead, 3 Bissell, 405; Newman v. Morris, 52 Miss. 402; Reiman v. Hamilton, 111 Mass. 245; Zimmerman v. Erhart, 58 Howard Pr. 11; Graff v. Kinney, 37 Hun, 405; Warrell v. Forsythe, 141 Ill. 22. (2) The wife acquiesced in and ratified this transaction, and is therefore estopped from now questioning it. Nor can any such question be raised by purchasers claiming under her. 14 Am. and Eng. Ency. Law, 645; Stewart on Husband and Wife, sec. 129; Pauley v. Vogel, 42 Mo. 291; Flesh v. Lindsay, 115 Mo. 1; Dann v. Cudney, 13 Mich. 239; O'Brien v. Hilburn, 9 Texas, 297; City v. Van Roven, 2 McCord (S. C.), 465; Early v. Rolfe, 95 Pa. St. 58; Lindner v. Sahler, 51 Barb. (N. Y.) 922; Wertz v. Jones, 34 N.E. 1. (3) The real defendant (Alexander) acquired no title to this property under the Peters' chattel mortgage. First. Because the general description upon which Alexander's claim rests was insufficient to pass the title to him, as against the plaintiff. Jones on Chattel Mortgages, sec. 55, and cases cited; 3 Am. and Eng. Ency. Law, 180; Stonebraker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo.App. 192; Chandler v. West, 37 Id. 631; Lafayette Co. Bank v. Metcalf, 29 Id. 384; Muir v. Blake, 57 Iowa 662; Hayes v. Wilcox, 61 Id. 732; Cray v. Carrier, 62 Id. 535; Everett v. Brown, 64 Id. 535; Barrett v. Fisch, 76 Id. 553. Second. Because the general description of the mortgaged property, following as it did the specific description in which the mare in question was omitted, could not enlarge or add to such inventory, and therefore its only office was to locate the property specifically described. City v. Laughlin, 49 Mo. 559; City v. Thompson, 19 Mo.App. 523; State v. Turner, 21 Id. 324; State ex rel. v. Taaffe, 25 Id. 567; City of Hannibal v. Price, 29 Id. 280; City of St. Joseph v. Porter, 29 Id. 605; Mason v. Hannah, 30 Id. 190; State v. Grisham, 90 Mo. 163.

C. M. Napton for respondent.

(1) The mare was not partnership or joint property of Green and wife and hence appellant's first point is not well taken. As it appears that the jury found this issue for defendant it is not necessary to discuss the legal aspects of a partnership or joint ownership. (2) Even if the wife ratified the transaction, which we deny, still she would not be estopped from questioning it, nor would defendant. The learned counselor for appellant has cited no case from Missouri, since 1879, showing that a wife may be estopped as he claims, and if we should follow the cases cited from other States, we would completely and effectually nullify and repeal our statute that requires the wife's "assent to be in writing." (3) The general description in the Peters' mortgage of "all stock on the farm" was sufficient to pass title to the mare inasmuch as Alexander was in possession. Keating v. Hannenkamp, 100 Mo. 161. (4) In replevin the plaintiff must recover on the strength of his own title and the defendant here showed the stronger title. Green beat Alexander out of $ 800 and Ingals out of less than $ 10, because the use of the mare was certainly equivalent to her keeping and the original $ 100 due Ingals was paid within a few dollars and he had the additional security of two colts which he negligently lost.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action of replevin for a mare. The appeal has been certified to this court by the St. Louis Court of Appeals, because one of the judges of that court deemed the opinion of the majority to be contrary to previous decisions of this court. Const. Amdt. of 1884, sec. 6.

The plaintiff gave bond and possession of the mare was delivered to him by the officer serving the writ. The jury found the issues for the defendant and assessed the value of the animal at $ 70 and the damages for detention at $ 50, and the circuit court rendered judgment accordingly. From that judgment plaintiff appeals.

A new trial was asked on the grounds that the verdict was against the evidence; against the law; against the law and the evidence; is for the wrong party; the court refused proper instructions asked by plaintiff, and gave improper instructions for defendant; admitted incompetent evidence against plaintiff's objections and excluded proper evidence offered by plaintiff.

The following facts were in evidence before the circuit court:

The plaintiff, J. O. Ingals, deduced his title to the mare in controversy through one E. W. Green, and defendant claims title through both E. W. Green and Mrs. Eliza C. Green, his wife. In 1887 there was an auction sale of stock at the Scott farm in St. Louis county. Mr. Sutton, a member of the auction firm of Lanham & Sutton, testified that he attended that sale. He remembered the mare in controversy was sold that day. Judge Lanham sold the horses and witness made the memoranda of the sale. The entry of the sale of this mare was to Eliza Green. Eddie Green bid it in in her name and her name was entered on the firm books by myself. Mrs. Green was a teacher in the public schools. The payments on account of this purchase were not made oftener than once a month. I got the money from Mr. Green. He told me that they were Mrs. Green's monthly payments as a teacher. There was a note given for the stock purchased by Mrs. Green, joined by her husband, and secured by mortgage, also signed by Green and his wife.

The plaintiff took Green's deposition at Sedalia. It seems that several years after the sale he deserted his family and his evidence for that reason appears in deposition taken at Sedalia. In this deposition he testified: "I bought the mare and the stock out there at the Scott sale. The auctioneers were Judge Lanham and Henry L. Sutton. Lanham called the sale and Sutton wrote it down. I told them at the time I purchased this mare Julia to put her down in the name of my wife, and it was done. All the property I bought there went in her name. She never conveyed that property to me by any instrument of writing. It is hers."

In 1888 a farm belonging to Green and wife was about to be sold under a deed of trust. The holder of the mortgage debt agreed that if Green would pay him a "$ 100 on the note he would wait." Thereupon borrowed that amount from the plaintiff Ingals, who testifies that in March, 1888, Green gave him an absolute bill of sale of the mare on the condition that he was to have her back when he paid the $ 100, and the mare's feed at $ 15 per month. This bill of sale was not produced. Plaintiff stated that it was lost. Under this arrangement he kept the mare six months and Green said to him: "She is eating her head off." "Send her out to the country and she shall still be yours and I will make a note for $ 200 which will cover the feed bill, and the balance I owe you, and I will give you a mortgage on two two-year-olds for security."

Plaintiff agreed to this and returned the mare to Green. Green paid plaintiff $ 90 on this indebtedness, according to his evidence, but according to William F. Green's testimony, plaintiff told him he was fully paid. William also testified that E. W. Green, his father, did $ 102 worth of tailoring for plaintiff.

The only evidence tending to show that Mrs. Green knew of her husband's mortgage or sale of the mare to plaintiff is found in the statement of plaintiff that: "She knew the mare was in my possession the first six months from March to September, 1888, because I drove out there once or twice with her and she noted her condition, saying she was looking better. She made not the slightest objection to my possession of the mare." Whether plaintiff knew of Mrs. Green's claim does not appear from the testimony.

The original defendant deduced title in the following way: He was merely the bailee of Mr. R. N. Alexander, who has since died, and whose wife and his administratrix has been substituted in the case as defendant. On the eighth of May, 1890, Green and wife executed a chattel mortgage to secure the payment of certain indebtedness due from them to F. W. Peters. The mortgage described various farm machinery, certain mules, Jersey cows, household and kitchen furniture, plate and glassware and concluded with these words, "all the stock and all implements on the farm known as Evergreen Farm, in section 31, township 45, range 6, one mile west of Webster in Central township, St. Louis county, State of Missouri." Soon after the execution of this mortgage to Peters, Green absconded, leaving wife and creditors behind. Among these creditors was Mr. R. N. Alexander.

In order to save his own debt Mr. Alexander purchased the Peters debt and mortgage, and took possession of all the mortgaged property, claiming the mare in question as a part thereof. At the mortgage sale of this property Mr. Alexander bought the mare for $ 150. The plaintiff Ingals was...