McDaniel v. Harris

• Decision Date: 07 November 1887
• Citation: 27 Mo.App. 545
• Parties: WILLIAM T. MCDANIEL, Plaintiff, v. JOHN HARRIS, Defendant and Respondent; W. J. BARD, Interterpleader and Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 545

WILLIAM T. MCDANIEL, Plaintiff, v. JOHN HARRIS, Defendant and Respondent;

W. J. BARD, Interterpleader and Appellant.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Cass Circuit Court, HON. CHARLES W. SLOAN, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

RAILEY & BURNEY, for the appellant.

I. The mortgage offered in evidence was duly executed, acknowledged and recorded, and should have been admitted in evidence. 1 Rev. Stat., sects. 2503, 680, 681, 676; Bevans v Bolton, 31 Mo. 437; Jones on Chattel Mortgages, sects 250-261. Revised Statutes, section 2503, provides that " no mortgage or deed of trust of personal property, hereafter made, shall be valid * * * unless the mortgage or deed of trust be acknowledged or proved, and recorded in the county in which the mortgageor or grantor resides, in such manner as conveyances of land are, by law, directed to be acknowledged or proved and recorded." Defendant would so construe this language as to make it mean that the mortgage must be acknowledged and proved in the county in which the grantor resides, as well as recorded therein. But a careful reading of it is enough to convince any one that it will bear no such interpretation. It means that they are to be " recorded in the county in which the mortgageor or grantor resides, in such manner as conveyances of lands are, by law, directed to be" recorded, and that they are to be " acknowledged or proved in such manner as conveyances of land are, by law, directed to be acknowledged or proved." Now, applying the language of this statute to the facts in this case, do we not find an exact compliance with its letter and spirit? The mortgage was recorded in Cass county, where defendant contends that Harris, the grantor, resided, and it was also recorded in Bates county, where he was beginning to remove. The manner of acknowledging and proving conveyances of real estate is set forth in sections 680, 681, and 682 of the statutes. All the things therein directed to be done were done in this case, literally and exactly. But it is argued by defendant that, because section 676 provides that acknowledgments of real property may be taken " before some justice of the peace of the county in which the real estate conveyed or affected is situated," that, therefore, the acknowledgment of a mortgage must also, if taken before a justice of the peace, be taken by one who resides in the county where the grantor resides. This seems to us clearly a non sequitur. The analogy would be carried out with precision if we should construe the statute to mean that a mortgage may be acknowledged or proved before some justice of the peace of the county in which the property is situated. This is the logical and reasonable construction of the statute. The justice can take acknowledgments of grantors to conveyances of property, real or personal, if situated in his county, and it matters not to him where the grantor or grantee may reside. This is a literal compliance with the terms of the statute, and ought to be sufficient. If the acknowledgment is properly taken, and is valid when taken, it should be, and is, entitled to record wherever the law may direct it to be recorded. We have seen that section 2503 directs it to be recorded in the county where the grantor resides, and this direction was complied with in the case at bar.

II. About $385.90 of the debt due the interpleader was for the purchase price of the mules in controversy. The court should, therefore, have declared his rights and interest therein, and subjected the said property to the payment of the purchase price thereof before allowing it to be taken and sold, or placed beyond his reach by a creditor. 1 Rev. Stat., sect. 2353; Parker v. Rodes, 79 Mo. 88; The Bolckow Mill Co. v. Turner, Frazier & Co., 23 Mo.App. 103. In the case at bar the interpleader, a vendor, has a debt due from Harris, payable December 28, 1887, for the purchase money of certain property, and McDaniel, a creditor of Harris, has attached the said property, and, unless prevented, he will subject it to the payment of his debt and place it beyond the reach of the vendor. The law (section 2353) gives the vendor of personal property the right to subject it to the payment of the unpaid purchase money as against all persons, except " innocent purchasers, for value, without notice of such prior claim for purchase money." The defendant, being a creditor merely, does not come within the terms of this exception. Bolckow Mill Co. v. Turner, supra. The spirit and meaning of the law, as decided by this court in the case above quoted from, applied to this case, affords the interpleader the remedy asked for by him. If he could have attached the property after defendant's attachment was levied thereon, and then postponed the lien of the latter to his claim for purchase money, there is no reason why he could not interplead, as in this case, there being no ground for attachment, and postpone the defendant's attachment to his claim for purchase money.

III. The conversations between McDaniel and Harris, in the absence of the interpleader, which the court admitted in evidence, were hearsay and inadmissible. These were statements of Harris, the debtor, to defendant, in the absence of plaintiff, the substance of which was that Harris owed nothing to plaintiff on the mules, and that they were fully paid for. That it was not competent as against this plaintiff is a proposition so elementary that no authorities need be cited in its support.

GEORGE BIRD, with WM. J. TERRELL, for the respondent.

I. The situs of chattels personal in the county in which the mortgageor resides is in strict analogy with the law for assessment for taxation. Rev. Stat., sect. 6685, as amended by Stat. 1881, p. 178; Cooley on Taxation, [1 Ed.] 269; Kirtland v. Hotchkiss, 100 U.S. 499.

II. The express terms of the statute required that this chattel mortgage should have been acknowledged as well as recorded in the county of Cass, where the mortgageor resided; and not having been so acknowledged, was, by the terms of the statute, void, except between the parties. This statute changed the common law and must be strictly construed. Rev. Stat., sects. 2503, 676, pp. 419, 111; White v. Graves, 68 Mo. 218, 223; Jones Chattel Mortgage, sects. 248, 250, 251; Frank v. Miner, 50 Ill. 444, 447; Boyd v. Beck, 29 Ala. 703; McDowell v. Stewart, 83 Ill. 538. A chattel mortgage acknowledged before a justice of the peace of a county other than the one in which the mortgageor resides, imparts no notice to third parties. 1 Rev. Stat., sect. 2503, p. 419; 1 Rev. Stat., sect. 676, p. 111; White v. Graves, 68 Mo. 218, 223; Bishop v. Schneider, 46 Mo. 473; Selking v. Hebel, 1 Mo.App. 340.

III. A defective or false certificate of acknowledgment renders invalid the mortgage and the property is subject to be levied on and sold by a creditor. Jones Chat. Mort., sect. 248, supra; Frank v. Miner, supra; McDowell v. Stewart, supra; Bishop v. Schneider, 46 Mo. 472; Selking v. Hebel, 1 Mo.App. 340.

IV. The construction given by appellant to section 2503( supra ), makes the statute an instrument of fraud instead of a guard against frauds, as intended. No creditor could be presumed to take notice of a mortgage made by John Harris, of Homer township, Bates county, Missouri, and acknowledged before a justice of the peace of that county, as describing property owned by John H. Harris, of Cass county, Missouri, and was no notice. Selking v. Hebel, supra. It cannot be said that the statute (to secure the vendor of personal property) confers upon the vendor a lien for the purchase price thereof. Bolckow Mill Co. v. Turner, 23 Mo.App. 108. And the extent and object of it is to enable the vendor " to subject it, by execution on a judgment against the purchaser for the purchase price thereof, to the payment of said price." An interplea cannot take the place of judgment and execution--it is not even a legal process. Saunders v. Ohlhausen, 51 Mo. 163, 165. In the case at bar there was neither possession nor right of possession and would cause a misjoinder of parties. Parker v. Rodes, 79 Mo. 91.

V. The alleged error in the admission of the declaration of Harris at the time of renting the land did not prejudice the interpleader. The only purpose of the evidence being to show the good faith on which defendant acted, and being the declaration of the party in possession of the property, was a part of the transaction and admissible. Kingsland v. Drum, 80 Mo. 646, 648, and cases cited.

ELLISON J.

On December 28, 1886, John Harris was indebted to interpleader and...