McCandless v. Moore

• Decision Date: 31 August 1872
• Citation: McCandless v. Moore, 50 Mo. 511 (Mo. 1872)
• Parties: WILLIAM V. MCCANDLESS AND WILLIAM HENRY, JR., Appellants, v. DANIEL MOORE AND ISADORE JONAS, Respondents.
• Court: Missouri Supreme Court

50 Mo. 511

WILLIAM V. MCCANDLESS AND WILLIAM HENRY, JR., Appellants,

v.DANIEL MOORE AND ISADORE JONAS, Respondents.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Cameron Court of Common Pleas.

McCandless & Henry, Jr., for appellants.

Possession of property as bailee for certain purposes, or as a pawn or pledge in any manner to secure a debt, whether evidenced by mortgage or not, is sufficient to authorize a recovery by such possession against any other person for damaging or converting the same to his own use. (2 Greenl. Ev. 612-14, note, § 637; 1 Blackst. Com. book 2, pp. 318, 396.) The mortgage is sufficient of itself to authorize a recovery. It vested the legal title in plaintiffs, and authorized them to take possession of the cow; and no sale or other disposition of the cow by Langley afterwards could affect plaintiffs' right under the mortgage, since they took possession immediately and never abandoned it. (King v. Bailey, 8 Mo. 332; Ferguson v. Thomas, 26 Me. 499; Sexton v. Monks, 16 Mo. 156.)

BLISS, Judge, delivered the opinion of the court.

This suit was brought for the value of a cow, and the evidence tended to show that one Langley executed to the plaintiffs his promissory note for $50, and secured it by a mortgage upon the cow, and delivered possession; and that, while in the possession of their agent, she was taken and sold to defendants by Langley's wife, and was by them slaughtered. It was left doubtful by the evidence whether the title was absolutely surrendered to the plaintiffs after the mortgage, or whether the property was still held under it; and the court held that if the cow was held under the mortgage, the plaintiffs could not recover.

It is not suggested what would be the remedy of one who holds possession as mortgagee if the property was taken and converted, although by the mortgage he certainly would have the right to pursue...