Langford v. Fanning

• Decision Date: 27 June 1928
• Docket Number: No. 20192.,20192.
• Citation: 7 S.W.2d 726
• Parties: LANGFORD v. FANNING (J. I. CASE THRESHING MACH. CO., Intervener).
• Court: Missouri Court of Appeals

7 S.W.2d 726

LANGFORD v. FANNING (J. I. CASE THRESHING MACH. CO., Intervener).

No. 20192.

St. Louis Court of Appeals. Missouri.

June 27, 1928.

Rehearing Denied July 6, 1928.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Actions by H. D. Langford, doing business as the Langford Auto Company, against J. B. Fanning. Judgments were entered in plaintiff's favor, and certain rice levied on as defendant's property, and the J. I. Case Threshing Machine Company intervened, claiming the rice under a mortgage. From an order of the circuit court overruling intervener's motions for adjudication of its title to the rice and for an order directing the sheriff to turn over the proceeds, intervener appeals. Affirmed.

Creech & Penn, of Troy, for appellant.

Howell & Jackson, of Troy, for respondent.

BENNICK, C.

This appeal is from the order of the circuit court of Lincoln county, overruling certain motions filed on December 18, 1926, by the J. I. Case Threshing Machine Company, as intervener, praying the court to adjudicate the right, title, and interest of the movant in and to certain rice theretofore seized, levied upon, advertised, and sold by the sheriff, and to make an order upon the sheriff, directing him to pay over to the movant the proceeds of the sale of such rice.

It appears from the agreed statement of facts filed by the parties at the time of the hearing in the circuit court that defendant, Fanning, on April 20, 1926, made, executed, and delivered to the intervener a chattel mortgage, covering, among other things, a two-fifths interest in 100 acres of rice to be sown, grown, and harvested by defendant during the seasons of 1926 and 1927, and given to secure the payment of two promissory notes. Said chattel mortgage was duly filed in the recorder's office on April 28, 1926, and has since remained on file therein.

On September 20, 1926, during the September, 1926, term of the circuit court of Lincoln county, two judgments were rendered therein against defendant, one in favor of H. D. Langford personally, for the sum of $212.77, and the other in favor of H. D. Langford, doing business as Langford Auto Company, for the sum of $191.16. On September 29, 1926, executions were issued on such judgments, directed to the sheriff, under and by virtue of which, on November 23, 1926, he levied upon and seized 452½ bushels of rice, stored in the warehouse of the Old Monroe Warehouse & Elevator Company as the property of defendant, and on December 11, 1926, after having given due notice, he sold the same at public sale to one Gillis, for a sum amounting to $348.58, exclusive of storage charges. While the fact does not appear from the agreed statement, there seems to be no dispute but that the rice in question had been grown during the seasons and upon the land described in the chattel mortgage.

After the sale had been announced, but before any bids had been received, the intervener caused a notice, verified by affidavit, to be read publicly, and thereafter delivered the same to the sheriff, said notice stating that the intervener claimed the rice under the chattel mortgage hereinbefore referred to. It was further agreed below that the intervener never took possession of the rice; that it filed no suit to have the chattel mortgage declared a lien against the property; and that at no time did it take any legal steps toward perfecting an equitable lien against the same.

Motions having been filed by the intervener, and overruled by the court, in each of the actions pending below, it follows that two appeals were taken, which, upon stipulation of counsel, have been consolidated in this court by an order duly made.

While learned counsel for the appealing intervener have seen fit to make five assignments of error, the import of all of them is to raise the single question of whether, under the facts of the case, the lower court properly denied the motions by which it was sought to have the proceeds of the sale of the rice paid over by the sheriff to the intervening mortgagee, rather than to plaintiff, Langford, the execution creditor, and, consequently, to to the sole issue thus presented, and decisive of the case as a whole, we shall proceed to address ourselves.

The rule seems to be well settled that a chattel mortgage on property not in esse, as on a crop to be thereafter sown or planted, will not convey to the mortgagee the legal title to the property when it comes into existence, unless he actually reduces the same to his possession before the rights of third parties have become fixed; but that, instead, an equitable lien only will attach to it, which lien may be enforced by equitable proceedings instituted by the mortgagee, either against the mortgagor, or against those claiming title to the property under the latter, who had notice of the equity of the mortgagee before their own titles or liens attached. France v. Thomas, 86 Mo. 80; Rutherford v. Stewart, 79 Mo. 216; Keating v. Hannenkamp, 100 Mo. 161, 13 S. W. 89; Littlefield v. Lemley, 75 Mo. App. 511; Gregory v. Tavenner, 38 Mo. App. 627; Scudder v. Bailey, 66 Mo. App. 40; Klebba v. Missouri Meerschaum Co. (Mo. App.) 257 S. W. 174; 11 C. J. 434, 444.

While it is held in many jurisdictions that it is upon proof of actual notice alone that the mortgagee will be entitled to follow the goods in the hands of one claiming title under the mortgagor, and that constructive notice will not suffice, as is indicated by the note in 11 C. J. 435, the Springfield Court of Appeals has pointedly...