Long v. Gorman

• Decision Date: 04 February 1902
• Citation: 79 S.W. 180,100 Mo. App. 45
• Parties: LONG v. GORMAN et al.
• Court: Missouri Court of Appeals

79 S.W. 180

100 Mo. App. 45

LONG v. GORMAN et al.

St. Louis Court of Appeals. Missouri.

February 4, 1902.

CHATTEL MORTGAGES — PRIORITIES — ORAL AGREEMENT — BONA FIDE INDORSEE OF NOTES—RECORD IN BOOKS FOR REAL ESTATE MORTGAGES—NOTICE.

1. A bona fide indorsee of notes is not affected by an oral agreement with the payee that the deed of trust of chattels securing them should be subject to other incumbrances.

2. The recording in the records of land mortgages of a deed of trust embracing both land and chattels is constructive notice of the incumbrance of the chattels, notwithstanding the statute requires chattel mortgages to be recorded in separate books.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by W. J. Long against T. E. Gorman and others. Judgment for plaintiff, and defendants appeal. Affirmed.

H. S. Booth and Fry & Clay, for appellants. George Robertson and Thos. S. Carter, for respondent.

BLAND, P. J.

Evidence was introduced by the defendant tending to prove that Mayer took the deed of trust with an understanding this his mortgage on the cattle should be subjected to the mortgages given by J. W. Crawford to the defendant bank. This understanding, if made, was not incorporated in the deed of trust, and there is no evidence that the plaintiff was informed of this agreement or had any knowledge of it, and, it being admitted the notes to Mayer were negotiable and were transferred to the plaintiff before maturity, the agreement that the Mayer deed of trust as to the cattle should be subject to the mortgages held by the defendant bank is eliminated from the case, and appellant makes no point on the agreement. Appellant contends that, as to the cattle, the deed of trust is neither a mortgage nor a pledge; that there are no apt words in the instrument selling or conveying the cattle to Mayer. By its answer the appellant tacitly admitted that the deed of trust was effectual to mortgage the cattle to Mayer, and seek to avoid the priority of that mortgage by the allegation that Mayer took the cattle subject to prior mortgages of the defendant. The cause was tried on this theory, and will be disposed of here on the same theory.

The only question remaining for consideration is whether or not the record of the deed of trust on the land records of mortgages for Audrain county was constructive notice of the mortgage of the cattle described in the deed of trust. This question is answered in the affirmative by the decision of ...