Kansas City Sav. Ass'n v. Mastin

• Decision Date: 31 October 1875
• Citation: 61 Mo. 435
• Parties: KANSAS CITY SAVINGS ASSOCIATION, et al., Respondents, v. JNO. J. MASTIN, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 435

KANSAS CITY SAVINGS ASSOCIATION, et al., Respondents,

v.JNO. J. MASTIN, et al., Appellants.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Jackson County Special Law and Equity Court.

F. M. Black, for Appellants.

I. The plaintiffs intended to, and did, at the time of these suits, abandon their mortgage, and they ought now to be allowed to renew their lien. A mortgage may be discharged or waived by the acts of the parties. (2 Hill. Mort., 513.) If the mortgagee sell the property on execution or attachtachment he waives his lien. (Butler vs. Miller, 1 Comst., 496-502; Kimball vs. Benning, 45 N. H., 429; Paul vs. Hay ford, 9 Shep., 234; 2 Dessaus, 194; Anderson v. Bumgarten, 27 Mo. 80.)

II. At the time Sigemont took back the property, there was due to him seven month's rent, and of this, $2,500 and over was due before the first of the notes now in controversy became due, and for that amount, at least, he had a priority, and the mortgage being forfeited, Sigemont, being in the possession, had a right to pledge the property to defendants and they acquired all his interest, and even if it be held that plaintiffs did not waive their lien, defendants should at the least have had a priority to the extent of the $2,500 in the judgment in this cause. (See Taylor vs. Taylor, 8 Barb. 585; Wilson vs. Brannon, 27 Cal., 258; Green vs. Dingley, 11 Shep., 131.)

W. B. Napton, Jr., for Respondents.

I. The transfer of the debts secured by the mortgage carried the security with it and all incidents thereto. (Potter vs. Stephens, 40 Mo., 209.)

II. The fact that a general judgment was obtained on the notes secured by the mortgage did not affect the mortgage. (Houston vs. Pigg, 24 Mo., 249.)

III. As to the question of waiver and abandonment of the lien by plaintiffs, there is no evidence to support the facts.

The agreement between the Mastins and Sigemont could not destroy the lien of plaintiffs as the assignees of the notes.

SHERWOOD, Judge, delivered the opinion of the court.

Suit for injunction and for foreclosure of chattel mortgage, brought in July, 1872. In the Spring of 1870, one Sigemont was the owner of certain hotel furniture and fixtures, which were under mortgage to one Welch for $3,600, which incumbrance was, in the Summer of 1872, removed by the payment of the debt thereby secured. While, however, the incumbrance in Welch's favor still subsisted, Sigemont, in April 1870, leased the premises to Long & Carroll for a term of five years at a yearly rental of $10,000, and sold the furniture, etc., taking their three promissory notes for $3,000, each payable respectively, in three, six and nine months. These notes were secured by a duly executed and recorded mortgage on the personal property thus sold, and this mortgage, whose foreclosure is sought in the present action, also contained a clause referring to the lease between the parties thereto, and providing for the prompt payment of the rents therein specified. Sigemont sold these notes to plaintiffs and also, as portion of the testimony seems to show, delivered possession of the mortgage. Long & Carroll failed to meet their engagement respecting rents, and Sigemont, finally, in the Fall of 1870, paid them a consideration to quit the premises, and give him possession of the same, as well as of the personal property, etc., sold to them, and on which they had secured the three notes for $3,000. About the time of this transaction last mentioned, but before Long & Carroll had yielded possession either of the house or furniture therein, Sigemont borrowed of defendants John J. & Thos. H. Mastin $3,524, and secured the note he gave for the same, by deed of trust to defendant Black. This deed embraced not only the personal property, mortgaged by Long & Carroll to Sigemont, but also the hotel...