Kerman v. Leeper

• Citation: 157 S.W. 984
• Parties: KERMAN v. LEEPER et al.
• Decision Date: 02 June 1913
• Court: Court of Appeal of Missouri (US)

157 S.W. 984

KERMAN v. LEEPER et al.

Kansas City Court of Appeals. Missouri.

June 2, 1913.

Rehearing Denied June 16, 1913.

1. BANKRUPTCY (§ 268) — SALE BY TRUSTEE — PROPERTY SUBJECT TO MORTGAGE — ASSUMPTION OF DEBT.

One by buying property at sale of a trustee in bankruptcy, subject to the lien of a mortgage thereon, does not assume payment of the mortgage, but becomes owner of the property subject to the incumbrance.

2. BANKRUPTCY (§ 268) — SALE BY TRUSTEE — PURCHASE BY SENIOR LIENHOLDER.

There being two liens on property, subject to which the holder of the senior lien buys it at sale of a trustee in bankruptcy, existence of the junior lien prevents destruction by merger of his lien.

3. REPLEVIN (§ 10) — RIGHT OF POSSESSION — POSSESSION UNDER LANDLORD'S LIEN.

Where defendant, at sale of a trustee in bankruptcy, bought property subject to two liens — one his own landlord's lien for unpaid rent, the other the junior mortgage of plaintiff — and went into possession, he as regards plaintiff's right to maintain replevin therefor is to be regarded as in possession under his lien; the case being analogous to that of a junior mortgagee attempting to recover possession from a senior mortgagee in possession after condition broken, where the latter has the right of possession.

4. REPLEVIN (§ 8) — GIST OF ACTION.

Whether replevin be prosecuted with or without affidavit and bond, the gist of the action is right of plaintiff to immediate possession as against defendant, and wrongful detention of it by defendant.

5. REPLEVIN (§ 106) — ACTION WITHOUT BOND — DEFENDANT IN RIGHTFUL POSSESSION UNDER LIEN.

Where replevin is brought without affidavit and bond, so that defendant remains in possession, and it appears defendant is rightfully in possession, no affirmative relief should be given therein against defendant, as by judgment for the value of the property in excess of the amount secured by defendant's lien.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Carrie E. Kerman against Andrew Leeper and another. Judgment for plaintiff. Defendants appeal. Reversed.

Frank Sheetz & Son, of Chillicothe, for appellants. Karl Hirsh, of Kansas City, and Scott J. Miller, of Chillicothe, for respondent.

JOHNSON, J.

This is an action in replevin to recover certain hotel furniture. No affidavit and bond being filed by plaintiff, the property was left in possession of defendants, and was sold by them during the pendency of the suit. The facts which control the disposition of the case are as follows: The property, of the value of $800, was in the possession of defendants at the time of the beginning of this suit. It had belonged to the lessee of a hotel building owned by defendants, and by the terms of the lease had been subject to a lien for unpaid rent. The lessee became a bankrupt, and was indebted to defendants on account of rent in the sum of $410. The lessee also was indebted to plaintiff on a promissory note for $1,000, the payment of which was secured by a chattel mortgage on the property, but the lien of this mortgage was inferior to defendants' lien for rent. The property was ordered sold by the bankruptcy court, subject to these two liens, and defendants became the purchasers at that sale, and thereafter had possession of the property, and, as stated, were in possession thereof at the time this suit was instituted. A jury was waived, and the court rendered judgment for plaintiff in the sum of $390, the difference between the value of the property and the amount due defendants for unpaid rent.

In buying the property at the trustee's sale in bankruptcy, subject to the lien of plaintiff's mortgage, defendants did not assume the payment of the mortgage debt, but became the owners of the property subject to that incumbrance. The existence of that intervening incumbrance prevented the destruction of defendants' prior lien by merger and we may, and indeed...