Johnston v. Morrow

• Citation: 60 Mo. 339
• Parties: JOHN P. JOHNSTON, Respondent, v. GRANVILLE MORROW, Appellant
• Decision Date: 31 May 1875
• Court: United States State Supreme Court of Missouri

60 Mo. 339

JOHN P. JOHNSTON, Respondent,

v.GRANVILLE MORROW, Appellant

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Doniphan & Reed, for Appellant.

I. The mortgage purported to be and was treated as a chattel mortgage, and attached only to the machinery in the mill at the date of its execution, and it would have been incompetent

for the parties to have contracted that such chattel mortgage should have applied, to after acquired machinery. (19 N. Y., 123; 2 Lans. [N. Y.], 127; 10 Metc., 481; 2 Hill. Mortg., 339, et seq.)

II. No remittitur has been filed in this court for this excess. (48 Mo., 42.)

W. H. Sherman, for Respondent.

I. Although the deed might not, as a chattel mortgage, affect personal property subsequently acquired by the mortgagor, yet the machinery being annexed as a fixture to the real estate described in the mortgage, becomes subject to that mortgage as a part of the realty. And it was not released from the lien or incumbrance of such mortgage by reason of its severance from the mill. By the severance it became personal property, and in that character was still subject to the mortgage. (Curry vs. Schmidt, 54 Mo., 516.)

WAGNER, Judge, delivered the opinion of the court.

The record shows that one Oliver Davis owned a piece of land, on which there was a saw-mill, in Doniphan county, Kansas, and that he solicited a loan of $2,200, from the plaintiff herein.

Plaintiff refused to loan the money, being unwilling to rely on the land and mill as security, as the mill was old and had run down. Davis represented that he wanted to borrow the money for the purpose of building a new mill instead of the old one, whereupon, the plaintiff agreed to loan the money when the new mill was completed. When the new mill was erected the money was loaned, Davis and wife executing to the plaintiff a mortgage on the land to secure the payment, which mortgage contained this stipulation: “This instrument is to be a mortgage and lien on all buildings, mill and machinery in said mill, until said notes are paid, and to this end this instrument is to be and remain, also, a chattel mortgage on the mill and all machinery within, until said notes are fully paid.”

Both prior and subsequent to the date of the mortgage, Davis added new machinery to the mill, and, also, put new machinery in the place of old machinery which was inconvenient, out of repair, or worn out. The machinery was affixed to the mill in the usual manner, and used for improving it. The mill was situated on the bank of the Missouri river, and after the notes became due, and whilst they remained unpaid, the river commenced rising and threatened to wash the mill away. Davis informed plaintiff that he could not pay off the mortgage debt, and that he had done all he could to save the mill, and requested plaintiff to take the mill and machinery and save what he could, and make the most of it. Plaintiff then removed the mill and machinery to a place of safety at his own expense. While the several parts of the mill and machinery were lying at the...