Lasswell v. J. Henderson

• Decision Date: 02 May 1910
• Parties: S. R. LASSWELL et al., Respondents, v. J. HENDERSON et al., Appellants
• Court: Missouri Court of Appeals

128 S.W. 789

144 Mo.App. 396

S. R. LASSWELL et al., Respondents, v. J. HENDERSON et al., Appellants

Court of Appeals of Missouri, Springfield

May 2, 1910

Appeal from Douglas Circuit Court.--Hon. John T. Moore, Judge.

AFFIRMED.

Judgment affirmed.

L. O Neider and Fred Stewart for appellants; Wright Brothers of counsel.

(1) Clark changed his residence to Douglas county and removed thereto the property. It then became necessary that the mortgage be recorded in Douglas county which was not done. R S. 1899, sec. 3404; Fahy v. Gordon, 133 Mo. 425; Rice, Stix & Co. v. Sally, 176 Mo. 133. (2) While it is true that the record of the mortgage was notice to all the world while the mortgagor resided in Howell county, when he changed his residence to Douglas county taking the mortgaged property with him the record of the mortgage in Howell county would not affect a creditor or purchaser from the mortgagor in Douglas county whether he had notice of the mortgage or not. State v. Setlington, 51 Mo.App. 252; Bevans v. Bolton, 31 Mo. 437; White v. Graves, 68 Mo 223; Rawlings v. Bean, 80 Mo. 614. (3) It is well settled law in this State that when it appears on the face of the mortgage conveying personal property that the mortgagor is to retain possession of the property and to sell and dispose of the same in the usual course of business, for his own benefit, such mortgage is void, as to creditors and purchasers, on the ground that such conveyance is deemed in law for the use of the mortgagor. Nebraska v. Steel, 36 Mo.App. 504; McCary v. Miller, 41 Mo.App. 200; Douglas v. Cissna, 17 Mo.App. 44; Sparks v. Brown, 46 Mo.App. 529; Manufacturing Co. v. Jenkins, 47 Mo.App. 664; Sauer v. Behr, 49 Mo.App. 86; Russell v. Rutherford, 58 Mo.App. 550; Bullen v. Barrett, 87 Mo. 185; Kuh v. Garvin, 125 Mo. 547. (4) It is equally well settled in this State that when the mortgage is fair on its face, as in this case, and the same impeaching facts are proven by extrinsic evidence, the same legal consequences result. McCarty v. Miller, 41 Mo.App. 200.

J. N. Burroughs and Thornsberry & Coleman for respondents.

OPINION

COX, J.

Action in replevin to recover possession of a saw mill and three horses. The petition is in the usual form in replevin. The answer is:

1. A general denial.

2. That defendants had purchased the property from one James Clark, without any notice of plaintiff's claim, and added valuable improvements thereto.

3. That after defendants had purchased the property plaintiff had notified them that he was the owner thereof, claiming, under a chattel mortgage; that they then made an agreement with plaintiff by which they were to retain possession of the property and that they and complied with their part of the contract, and, for that reason, that plaintiff could not recover.

4. That plaintiff and Clark had conspired together agreeing that Clark should sell the property to these defendants and secure what he could on the purchase price thereof, then abscond, and plaintiff would retake the property under his mortgage.

A jury was waived, and the case tried by the court, and the issues found for the plaintiff. The defendant asked the court to declare the law in declaration number one that if he should find that it was agreed between Lasswell and Clark, at the time the mortgage was executed, that Clark was to remain in possession of the property, and he should have permission to dispose of the same in the ordinary course of business for his own use and benefit, and that in pursuance of such an agreement, Clark did remain in possession and did sell or trade some part of the property, and dispose of the proceeds for his own use and benefit, then the mortgage was fraudulent and void as against defendants.

Second, if the court should find that Clark was permitted by the mortgagee to sell and dispose of the horses described in the mortgage, and apply the proceeds to his own use, and not use it in paying the mortgage debt, and that after such mortgage became due, plaintiff suffered Clark to remove the property to Douglas county without making any effort to collect his debt, that this conduct, on his part, rendered the mortgage void as to the purchaser from Clark.

These instructions were refused and the court's action thereon is now assigned as error. It appears that at the time the mortgage was given both the mortgagor and the mortgagee resided in Howell county and the property was located in Howell county, and the mortgage was recorded in Howell county.

There is no question that the recording of a chattel mortgage in the county where the mortgagor resides at the time of the execution of the mortgage imparts notice of the existence of the mortgage and the...