Kingsland v. Drum

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NORTON
• Citation: 80 Mo. 646
• Decision Date: 31 October 1883
• Parties: KINGSLAND et al. v. DRUM, Administrator, et al., Appellants.

80 Mo. 646

KINGSLAND et al.
v.
DRUM, Administrator, et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

AFFIRMED.

Wilson Cramer for appellants.

The evidence shows that appellants took the mortgage in good faith, for the purpose of securing a just debt. The law declared by this court in Wangler v. Franklin, 70 Mo. 659, and Robbins v. Phillips, 68 Mo. 100, was radically changed by act of the legislature of April 2nd, 1877. R. S., § 2507. Assuming that the evidence established a conditional sale, the condition was not evidenced by writing, as required by the foregoing act, and was, consequently, void, and the petition, failing to allege the execution of such writing, does not state facts sufficient to constitute a cause of action. The petition does not claim that the sale to Eisenberg was on condition, but that his vendors should retain a vendor's lien until the purchase notes were paid. The evidence shows that possession of the machine and horse-power was delivered to the purchaser, and this operated as a waiver of the vendor's lien. Sigerson v. Kahmann, 39 Mo. 206; S. W. Freight, etc., v. Stanard, 44 Mo.

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71; S. W. Freight, etc., v. Plant, 45 Mo. 517; Benjamin on Sales, (2 Am. Ed.) § 799.

R. B. Oliver for respondents.

The evidence shows there was a contract or agreement between respondent and Eisenberg at the time of the sale of the machine and power, that the latter was to have the use and possession of the same, with a lien for the purchase price in favor of the former, until fully paid for. Such contract was binding, both on the parties to it and on all taking the property with notice of the same. Parsons on Contracts, (6 Ed.) side p. 494; Webb v. Ins. Co., 14 Mo. 3; Johnson v. Jeffries, 30 Mo. 423; Wangler v. Franklin, 70 Mo. 659. This court will not disturb a finding of the lower court because it is against the weight of evidence. Rea v. Ferguson, 72 Mo. 225; Price v. Evans, 49 Mo. 396; Penn v. Lewis, 12 Mo. 161. The trial court should give such relief as the pleading and facts warrant. Henderson v. Dickey, 50 Mo. 161; Merchants B'k v. Evans, 51 Mo. 335; Wright v. Barr, 53 Mo. 340; White v. Rush, 58 Mo. 105; Ames v. Gilmore, 59 Mo. 537. The judgment of the trial court is fully sustained by the evidence and right. 36 Mo. 138.

NORTON, J.

This suit was instituted for the purpose of setting aside a certain deed of mortgage executed by one Eisenberg, conveying to defendant Drum a certain threshing machine and horse-power, to secure him in the payment of certain debts therein mentioned. The mortgage was executed on the 10th day of August, 1878, and the validity of it is assailed by plaintiffs on the ground that said mortgage was without consideration, and that when it was executed defendant, Drum, had notice that said plaintiffs had a lien on said property for the purchase money, and that said machine and horse-power were sold by plaintiffs to Eisenberg with the understanding and agreement that their lien was to continue on the property till it was paid for. The petition sets up other matters, which it is

[80 Mo. 648]

not deemed necessary to notice, in order to a proper understanding of the controlling point involved in the case. The defendant, in his answer, puts in issue the averments of the petition as to said mortgage being taken without consideration, and with notice of plaintiffs's claim on the property. The court found for plaintiffs and rendered judgment accordingly, from which defendant has appealed.

It is contended by counsel for defendant that the evidence does not show a sale by plaintiffs to Eisenberg of the property in question, on the condition that the property was to remain the property of plaintiffs till it was paid for; and that if the evidence establishes that fact, there is no evidence showing that Drum had notice of it, at or before the time he took the mortgage on it.

As to the first of the above points, it must be ruled against the defendant. Mr. Mattingly, a...