Merrill v. Mason

• Decision Date: 06 November 1911
• Citation: Merrill v. Mason, 141 S.W. 454, 159 Mo. App. 605 (Mo. App. 1911)
• Parties: MERRILL v. MASON.
• Court: Missouri Court of Appeals

141 S.W. 454

159 Mo. App. 605

MERRILL v.MASON.

Kansas City Court of Appeals. Missouri.

November 6, 1911.

Rehearing Denied December 14, 1911.

1. TROVER AND CONVERSION (§ 32)—PETITION —REQUISITES.

In an action for conversion, a petition, failing to state that plaintiff was the owner of and entitled to the possession of the property at the time of the alleged conversion, was demurrable.

2. PLEADING (§ 433)—AMENDMENT AFTER VERDICT.

Where, in conversion, defendant did not demur on the ground that the petition failed to allege that plaintiff was the owner and entitled to the possession of the property at the time of the conversion, but first raised the objection after verdict, it was properly overruled and plaintiff permitted to cure the defect by amendment.

3. TENANCY IN COMMON (§ 38)—JOINT OWNERSHIP—CONVERSION.

One joint owner of personal property has no cause of action severally for conversion against a joint owner.

4. TENANCY IN COMMON (§ 27)—CONVERSION.

A tenant in common can only be held liable for conversion where he so appropriates the common property as to render its future use by his cotenant impossible; such action not arising by the mere refusal of the cotenant to recognize the other's interest in the property.

5. TENANCY IN COMMON (§ 8) — PERSONAL PROPERTY—MORTGAGE—FORECLOSURE.

Where a tenant in common of personal property mortgaged the same and the mortgage was thereafter foreclosed, such mortgage was invalid in so far as it affected plaintiff's interest in the property, and the foreclosure thereof only operated to terminate the cotenancy as between plaintiff and the mortgagor, creating a new one between plaintiff and the purchaser.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by Charles Merrill against A. O. Mason.Judgment for plaintiff, and defendant appeals.Reversed.

W. G. Sawyers and Cook, Cummins & Dawson, for appellant.W. E. Wiles, for respondent.

BROADDUS, P. J.

This is a suit for conversion, in which plaintiff seeks to recover from defendant damages for alleged conversion of a one-half interest in a threshing outfit consisting of an engine and separator.The defendant Mason was an implement merchant located at Maryville, and plaintiff was a farmer living in the same vicinity.It is admitted that in February, 1910, the defendant was the owner of said threshing outfit, and that at said date he sold, according to plaintiff's evidence, a one-half interest in it to one Samuel Moon, but, according to defendant's evidence, the whole property.Moon, in payment, executed his promissory note to pay for the purchase price in the sum of $800, to secure which he executed a mortgage upon the property.This mortgage was not recorded.According to plaintiff's evidence, during the time Moon had a contract for one-half of the machine; but before the papers had been signed he was operating it at the home of plaintiff.Plaintiff, having learned that Moon was the owner of one half of the machine, wanted to purchase the other half, and with that purpose he and Moon met defendant at his place of business.The defendant priced the one-half of the machine at $400.The plaintiff agreed to the price, and under the terms of the sale plaintiff executed two notes payable to defendant, one for $50 and the other for $350, due respectively September 1, and December 1, 1910, to secure the payment of which he executed a mortgage upon the machine and two of his horses.

Defendant testified that at the time he made the sale to plaintiff it was the understanding that he would have to pay off the Moon mortgage; that "he understood that he was to give $400 for half of the machine, but he would have to see that Moon's $800 was paid off, and as the machine was in my possession he agreed to that before he could get the machine."Plaintiff denies any such understanding or agreement.Moon made default in the payment of his note to defendant who took possession of the machine on the 29th day of December, 1910, and afterwards on the 13th day of January, 1911, after having posted notice of his intention to foreclose the mortgage by sale of the property, sold the same to one Elmer Rinehart, who took possession.The evidence of the plaintiff was that the outfit at the time of the sale was of the value of $900 or $1,000.It was also shown that he paid to defendant in full the amount of the two notes...