Martinsburg Bank v. Fennewald

• Decision Date: 07 February 1928
• Docket Number: No. 20011.,20011.
• Citation: 2 S.W.2d 207
• Parties: MARTINSBURG BANK v. FENNEWALD et al.
• Court: Missouri Court of Appeals

2 S.W.2d 207

MARTINSBURG BANK v. FENNEWALD et al.

No. 20011.

St. Louis Court of Appeals. Missouri.

February 7, 1928.

Rehearing Denied February 21, 1928.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

"Not to be officially published."

Action in replevin by the Martinsburg Bank against Elizabeth J. Fennewald and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. W. Botts, of Mexico, Mo., for appellant.

Clarence A. Barnes, of Mexico, Mo., for respondents.

NIPPER, J.

This is an action in replevin brought by the appellant, Martinsburg Bank, against the respondents for the possession of 4 mules. There was a verdict and judgment for the respondents Clarence and Cletus Fennewald, and plaintiff appealed.

The evidence discloses that on the 2d day of January, 1926, the Martinsburg Bank loaned to Frank A. Fennewald, father of the defendants, $1,250, for which he executed a demand note, and to secure the same executed a chattel mortgage on 14 head of mules then on his farm. In executing said note and mortgage, Frank A. Fennewald signed the name of his wife, Lizzie J. Fennewald, to both note and mortgage. Included in this 14 head of mules was the 4 mules in controversy. Early in March of the same year, defendant sold 2 of the mules covered by the mortgage and paid the amount received, $270, on the note. On the 27th day of March, 1926, Frank A. Fennewald was adjudged insane by the probate court of Audrain county, and his wife, Elizabeth J. Fennewald, was appointed his guardian.

The two defendants, Clarence and Cletus Fennewald, are twin sons of Frank A. and Elizabeth J. Fennewald. These boys arrived at the age of 21 years in August, 1925. At the time of the institution of this suit, they were living with their mother on the farm, and refused to surrender possession of these 4 mules; that is, each of the defendants claimed 2 mules as his individual property. The testimony as offered by the defendants discloses that, 7 or 8 years prior to the institution of this suit, the grandfather of Clarence and Cletus Fennewald gave to each of the boys a mule colt, which they took to their father's farm, where they were kept and cared for. Afterwards their father sold these mules, and, in the spring of 1925, he gave 2 other mules to each of the boys, in payment for the mules which their grandfather gave them, and which he had sold and appropriated the money therefor. The boys remained at home and worked on their father's farm, and at times worked away from home for the benefit of the family, the father collecting the proceeds of their labor. When Elizabeth J. Fennewald was appointed guardian of Frank A. Fennewald she directed the appraisers not to appraise these 4 mules because they belonged to the boys. She stated that the father of the boys had said that he gave the mules to them...