Keating v. Hannenkamp
| Decision Date | 10 March 1890 |
| Citation | 100 Mo. 161,13 S.W. 89 |
| Parties | KEATING v. HANNENKAMP et al. |
| Court | Missouri Supreme Court |
1. The lessee of a building, who was intending to fit it up with suitable furniture for a restaurant, but who had not yet purchased or put it in the building, executed a mortgage on all the furniture that should be contained in the building. Held, that the mortgage was good in equity, and that the lien which attached when the furniture was put in the building was valid against the mortgagor and a subsequent mortgagee with notice.
2. The mortgage set out and recited the lease, and both were executed at the same time; the mortgage being for the purpose of securing the payment of the rent. Held, that the lien of the mortgage attached to furniture put in the building by an assignee of the lease.
3. Where the equitable mortgagee takes possession of the property for a default under the terms and stipulations of the mortgage, he has the right to sell and execute the powers contained in the mortgage without the aid of a court of equity, and his sale passes a legal as well as equitable title.
4. The sale was not void either for the reason that the property was sold in bulk or that more was sold than was necessary to pay the debt.
Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.
Chester H. Krum, for appellant. Geo. E. Smith and Alex Young, for respondents.
The plaintiff brought this suit to recover the value of a quantity of furniture and fixtures. The case was tried by the court without a jury, resulting in a finding and judgment for defendant Cottrill, and a finding and judgment for plaintiff against defendant Hannenkamp, in the sum of one dollar, and the plaintiff appealed. The evidence discloses the following facts: Defendant Hannenkamp and others, being the owners of a three-story building, leased the same to C. W. Herbert for a period of five years, at $1,800 per year for the first three years, and $2,000 per year for the last two years, the rent to be paid monthly, in advance. The lease bears date the 5th November, 1883, though the term began on the 1st December, 1883. Herbert executed to Hannenkamp a mortgage dated the 13th November, 1883, to secure the payment of the rents reserved in the lease as they should fall due. The mortgage makes reference to the leased property, and assigns and transfers "the personal property, as described below, together with all furniture not mentioned herein, or that may be acquired by purchase or otherwise, and contained in the three-story brick house, [describing the house again,] the counters, shelving, mirrors, tables, chairs, stoves, ranges, glassware, and table-ware." This mortgage was duly acknowledged and recorded in December, 1883, though the lease was not recorded. The lease, it will be seen, bears date the 5th November, and the mortgage is dated the 13th of the same month. The evidence, however, shows that they were in fact both executed at the same time. The building was a new one, and Herbert, the lessee, rented it with a view of fitting it up for a restaurant, saloon, and lodging-house. The furniture was not in the building when the lease and mortgage were executed, and it is clear that some, if not all, of it had not then been purchased by Herbert. It had been purchased and placed in the house at or before the term of the lease began. Herbert assigned the lease and sold the furniture and fixtures to A. C. Hall in July, 1884, and Hall, after occupying the premises a short time, assigned the lease and sold out to Weiman. Both of these assignments were made by and with the written consent of the lessors. Weiman assigned the lease and sold the furniture to Barton prior to September, 1885. The lessors refused to give their consent to this assignment. Barton, however, took possession and paid rents until the 1st December, 1885. On the 12th September, 1885, Barton and wife executed a chattel mortgage on the furniture to secure a note for $1,500, payable to the plaintiff, Keating. Barton made default in payment of the rents for the months of December, 1885, and January, 1886, and thereupon Hannenkamp took possession of the furniture and fixtures under the terms and provisions of his mortgage, and sold the same at auction, and the defendant Cottrill became the purchaser. Keating then commenced this suit against Hannenkamp and Cottrill. The evidence is clear that when Keating took the mortgage from Barton and wife he had actual notice of the lease, and the mortgage executed by Herbert to Hannenkamp to secure the rents.
1. Herbert, the lessee and mortgagor, leased the building for the purpose of furnishing and...
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Hansen v. Duvall
... ... as soon as the assignor acquires title thereto ... [ Rutherford v. Stewart, 79 Mo. 216, 217; France ... v. Thomas, 86 Mo. 80; Keating v. Hannenkamp, ... 100 Mo. 161, 13 S.W. 89.] Evidently both parties intended ... that the mortgages should create a lien on the royalty in ... ...
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Hansen v. Duvall
...as soon as the assignor acquires title thereto. [Rutherford v. Stewart, 79 Mo. 216, 217; France v. Thomas, 86 Mo. 80; Keating v. Hannenkamp, 100 Mo. 161, 13 S.W. 89.] Evidently both parties intended that the mortgages should create a lien on the royalty in favor of the mortgagees, because a......
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Barton v. Sitlington
...of other creditors had intervened, created a valid lien on such property. Jones on Chattel Mortgages, secs. 164-168; Keating v. Hannenkamp, 100 Mo. 161, 13 S.W. 89; Moody v. Wright, 13 Metc. A still further contention is that the mortgaged property was excessive security, and, as it was pro......
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Bank v. Fletcher Sav. & Trust Co. , 24017.
...11 Ind. 316;France v. Thomas, 86 Mo. 80;Brady v. Johnson et al., Trustees, 75 Md. 445, 26 A. 49, 20 L. R. A. 737;Keating v. Hannenkamp et al., 100 Mo. 161, 13 S. W. 89; Mitchell v. Winslow, supra; Jones, Chattel Mortgages (5th Ed.) § 170; Jones, Mortgages (7th Ed.) § 153. Moreover, for augh......