Kimball v. Silvers

• Decision Date: 14 June 1886
• Citation: 22 Mo.App. 520
• Parties: W. W. KIMBALL, Respondent, v. J. M. SILVERS ET AL., Appellants.
• Court: Missouri Court of Appeals

22 Mo.App. 520

W. W. KIMBALL, Respondent,

v.J. M. SILVERS ET AL., Appellants.

Kansas City Court of Appeals, Missouri.

Jun. 14, 1886.

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action in replevin for recovery of the possession of a piano. The important facts are, that, on or before the fifth day of November, 1881, the plaintiff, through his agent at Kansas City, sold to Mrs. E. M. Thorpe, a piano. She paid in cash thereon the sum of one hundred and fifty dollars, and gave to plaintiff her promissory note for the balance of the purchase money; to secure which she executed a chattel mortgage to plaintiff. Mrs. Thorpe was then a married woman, and her husband neither joined in making the note nor the mortgage. The mortgage bore date of November 5, 1881, but was not acknowledged until the ninth day of November, 1881, nor put to record until the seventeenth day of that month. In the meantime, on the twelfth day of November, the firm of Abernathey, North & Orrison, of Kansas City, instituted suit by attachment in a justice's court against E. E. Thorpe, the husband of E. M. Thorpe, under which the defendant Silvers, as constable, seized said piano, as of the property of the husband, or at least as subject to the demand of Abernathey et al. In this action of Abernathey et al., judgment was obtained on the twenty-fifth day of November, and execution was issued thereon and levied on this piano. The constable had the same advertised for sale on the tenth day of December following. The piano was in the meantime stored by the constable with the defendants as store keepers. Before the day of sale the plaintiff brought this action of replevin against the constable and the special bailees, and took the piano, claiming possession under his said chattel mortgage.

The affidavit to the petition in replevin was made by one Farrell, and did not comply with the statute. At the trial, defendants moved the court to order the property returned to the defendants for the reason that the affidavit did not authorize the clerk to make the order of delivery. This motion the court overruled, and permitted the proper affidavit to be then made to the petition, over the objection of defendants. Defendants also objected to the introduction in evidence of the said chattel mortgage. At the close of plaintiff's evidence the defendants demurred to the evidence. This being overruled, the defendants offered to prove that the debt for which Abernathey et al. sued Thorpe was contracted for necessaries for himself and family.

This offer was refused by the court.

The court found the issues for plaintiff, and defendants have appealed.

SCARRITT & SCARRITT, for the appellants.

I. The court had no jurisdiction to order defendant in a replevin suit to deliver personal property to the sheriff, or to require the sheriff to take such property from defendant and deliver it to plaintiff, until the plaintiff, or some one for him, has filed the statutory affidavit. Sect. 3844, Rev. Stat; Eads v. Stephens, 63 Mo. 90. A petition sworn to by the plaintiff, or his agent, does not meet the requirements of the statute, and will not support an order for the delivery of personal property. Sect. 3844, Rev. Stat.

II. A chattel mortgage executed by a married woman, without joining her husband is absolutely void. King v. Mittaberger, 50 Mo. 183; Edwards on Prom. Notes (2 Ed.) 66; Benjamin on Sales, sect. 31; Jones v. Crosthwaite, 17 Iowa 396; Helum v. Warner, 112 Mass. 273; Bricker v. Scott, 47 Ind. 299; Switzer v. Valentine,10 How. Pr. (N. Y.) 115; Martin v. Colburn, Sup. Ct., Mo., Oct. Term, 1885.

III. The legislature of this state has not conferred upon a married woman the right to contract without joining her husband, and any contract made by her alone cannot be enforced in a court of law. Sect. 3296, Rev. Stat; Yate v. Dederer, 18 N. Y. 271; Brown v. Fifield, 4 Mich. 322; Alexander v. Salisbury, 39 Ala. 375; Swift v. Luce, 27 Maine 285; Nash v. Norment, 5 Mo. App. 547. And any act of the legislature giving validity in law to any contract of a married woman is in derogation of the common law, and must be construed strictly, and no implication can be allowed to arise from the language of the statute. Lord v. Parker, 3 Allen (Mass.) 127; Jones v. Crosthwaite, 17 Iowa 393; Howe v. Wildes, 34 Maine 572.

IV. Defendants had a right to prove that the debt for which the piano was attached was incurred by the husband for necessaries for the use of the wife and family. In such case, the property levied upon was, as to this debt, the property of the husband, and the lien having attached before the recording of the morgage, the defendants have the prior right to the possession of the property. Sect. 3296, Rev. Stat. The mortgage was not recorded until five days after the levy of the attachment; and the levy was made and the property taken with the consent of the owner, and under an agreement that it should be sold and the proceeds applied to payment of the judgment against her husband. Under this state of facts, the mortgage is void as to these defendants, even though it should be held good as to others. Sect. 2503, Rev. Stat; Bevens v. Bolton, 31 Mo. 443; Bryson v. Penix, 18 Mo. 15; Cook v. Clapport, 12 Mo. 379.

V. If the plaintiff has any remedy, it is in equity and cannot be enforced in a suit of replevin. Carpenter v. Mitchell, 50 Ills. 470; Hooton v. Ranson, 6 Mo. App. 21.

VI. Plaintiff had no right to take the piano unti he had paid or tendered seventy-five per cent. of the one hundred and fifty dollars paid on the purchase price by Mrs. Thorpe. Sects. 2507, 2508, Rev. Stat.

SCAMMON & STUBENRAUCH, for the respondent.

I. The court did not err in permitting plaintiff to file amended affidavit and bond. Sects. 3844-5, Rev. Stat.

II. For the purposes of this case it is immaterial whether the mortgage was recorded or not. The parties whom the appellants represent are neither creditors nor purchasers from mortgagor or mortgagee. Johnson v. Jeffries, 30 Mo. 423.

III. Under the law of this state, at the date of the mortgage, a married woman could make a valid chattel mortgage upon her statutory separate property, without being joined by her husband. Boone on Mort., sect. 235; sect. 3296, Rev. Stat.; State to use Baier v. Berberich, 9 Mo. App. 128; Jones Chat. Mort. (2 Ed.) sect. 42; Alt v. Meyers, 8 Mo. App. 198; Krouskop v. Shoutz, 51 Wis. 204; Stewart on Husb. & Wife, sect. 237; Emmerson v. Clayton, 32 Ill. 493; Goodyear v. Rumbarg, 13 Pa. St. 480; Frecking v. Rolland, 53 N. Y.; McCoy v. Hyatt, 80 Mo. 130. The case of Nash v. Norment (5 Mo. App. 547), does not discuss the statute of 1875 at all.

IV. Defendants in no event had a right to prove that the debt for which the attachment was issued was incurred by the husband for necessaries. It was immaterial, the property being found to be the statutory separate property of the wife, and the proceeding by which it was sought to be reached, being a legal and not an equitable one. Gage v. Gates, 62 Mo. 412; Hooton v. Ranson, 6 Mo. App. 21; King v. Mittaberger, 50 Mo. 183.

V. It was not until after the mortgage was acknowledged and recorded (so the court finds) that Thorpe agreed to turn over the property to Abernathey and others. No agreement by her could then affect respondent's rights. The plaintiff's remedy by replevin was the appropriate one. Lacy v. Wathen, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393. The case comes directly under the statute. Sect. 3844, Rev. Stat.

VI. Sections 2507 and 2508, Revised Statutes, do not require a payment or tender of seventy-five per cent. of the one hundred and fifty dollars paid before the property may be replevied. Those sections apply not to absolute sales like that to Mrs. Thorpe, but to conditional sales only, “where the title remains in vendor.” Sects. 2507, 2508, Rev. Stat.

VII. Statutes like our present married women's act are remedial and are to be liberally construed. Dayton v. Walsh, 47 Wis. 113.

PHILIPS, P. J.

I. The first matter for consideration is the action of the court in denying the defendants' motion to remand the property to the defendants, and in permitting the plaintiff to file the proper affidavit. The statute (sect. 3844, Rev. Stat.) provides that if the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterwards, before the rendition of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, etc.

It may be conceded that, under the original affidavit, the clerk had no right to make the order of delivery, and that the sheriff had no authority to take the property and turn it over to plaintiff. The required affidavit was in the nature of a jurisdictional fact, or act, that must precede the order of delivery.

But the statute provides that this affidavit may be made at the time of filing the petition, “or at any other time afterwards, before the rendition of judgment in the cause.”

So, regarding the first affidavit as no affidavit, the plaintiff, or any one in his behalf, had the right to make the required affidavit at the time the second one was made. By section 3845, it was then the duty of the court to make the order of delivery. So had the court sustained the defendant's motion upon the presentation of the proper affidavit it was bound to make the delivery order, under which the sheriff would have been required to retake the property and restore it to the plaintiff. Why then go through the idle ceremony of first sustaining the motion, and in the next instant order the sheriff, before he could get out of the court house, to retake it? It is no answer to this fruitless form to say that defendant could not give a forthcoming bond and retain the property under the first affidavit, because, had he done so, it would have been a recognition of the validity of the affidavit....