Mohr v. Langan

• Decision Date: 14 May 1901
• Citation: 162 Mo. 474,63 S.W. 409
• Parties: MOHR v. LANGAN et al.
• Court: Missouri Supreme Court

63 S.W. 409

162 Mo. 474

MOHR v. LANGAN et al.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

REPLEVIN — CUSTODY OF PROPERTY — PENDING SUIT — SALE BY ONE IN POSSESSION — CONVERSION — WAREHOUSEMAN — AUCTIONEER — STATUTES.

1. Since under Rev. St. §§ 4474, 4476, whichever party is allowed to have possession of the property in replevin during pendency of the suit is required to return the same to the other party, if he be successful, at the termination of the suit, or pay the assessed value thereof, at the election of such other party, such property during the pendency of the suit is in custodia legis; and hence, where a complainant in replevin secured possession of the property under the writ, and sold the same, and judgment in the replevin suit was rendered against her, she was liable for conversion.

2. Where chattels were deposited with a regularly licensed warehouseman, and subsequently he was called as a witness as to the value of the chattels in a replevin suit for the chattels between the bailor and another, and thereafter, at the instance of the bailor, he delivered the goods to an auctioneer, who sold them during the pendency of the suit, and judgment was rendered against the bailor in the replevin suit, the warehouseman could not escape liability for the conversion on the ground that, being a regularly licensed warehouseman, he could not question the right of his bailor to demand a return of the goods, inasmuch as the circumstances were such as to put him on notice of the fact that his bailor might not have title.

3. In an action by the successful party in replevin against the warehouseman, it was proper to instruct that, if the warehouseman caused the goods to be hauled to the auction house, knowing they were to be sold, he was guilty of conversion, though he did not at that time know of the ownership of the goods by the successful defendant in replevin.

4. It was proper to instruct that the auctioneer was liable for the conversion, and that it was immaterial whether he had knowledge at that time of the ownership of the goods by plaintiff.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Clara C. Mohr against William O. Langan and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

In June, 1894, a Mrs. Smith replevied certain household goods from the plaintiff herein, Mrs. Mohr, claiming title thereto under a mortgage thereon executed by Mrs. Mohr. Mrs. Smith obtained possession of the property under the writ of replevin. Before a justice of the peace Mrs. Smith secured a judgment. Mrs. Mohr appealed to the circuit court, where, upon a trial de novo, on March 4, 1895, judgment was rendered in favor of Mrs. Mohr for a return of the property replevied, or its assessed value of $350, at the option of Mrs. Mohr. After Mrs. Smith obtained possession of the goods she stored them with the defendant Langan, a regularly licensed warehouseman, and they remained stored until March 20, 1895, and hence were intact on March 4, 1895, when the judgment of the circuit court was so rendered in favor of Mrs. Mohr. On March 20, 1895, Mrs. Smith procured defendant Langan to deliver the goods to defendant Leonori, a regularly licensed auctioneer, and on March 26, 1895, Leonori, by direction of Mrs. Smith, sold the goods at auction and turned over the proceeds, $114.80, to Mrs. Smith. Defendant Langan knew of the replevin case of Smith against Mrs. Mohr, and was a witness in the case as to the value of the goods; but it does not appear that he knew the result of the trial in the circuit court. Defendant Leonori knew nothing about that suit, nor was he aware of, or put to notice concerning, any infirmity in the apparent title of Mrs. Smith to the goods. After selling the goods on March 26th, Mrs. Mohr, on June 1, 1895, appealed the case to the St. Louis court of appeals, where, later, the judgment of the circuit court was affirmed. Mrs. Smith then elected to take the goods and not their assessed value. The plaintiff, Mrs. Smith, failed to deliver them to the defendant, Mrs. Mohr, and the sheriff was unable to find them, so as to return them to Mrs. Mohr. Thereupon Mrs. Mohr instituted this action against Mrs. Smith and defendants Langan and Leonori, claiming that Mrs. Smith had been guilty of conversion of the goods, and that defendants Langan and Leonori had actively aided and abetted Mrs. Smith in selling the goods, and hence they were also guilty of conversion. The value of the goods was laid at $500. The trial court instructed the jury (1) that the possession of Mrs. Smith under the writ of replevin conferred upon her a right to hold the goods, as a bailee or keeper, until the determination of the replevin suit, but gave her no right or authority whatever to sell or dispose of the goods, and if she did sell them she was guilty of a conversion, and if the other defendants aided or abetted her in selling them they were also guilty of conversion; (2) that if Langan caused the goods to be hauled to Leonori's auction house, knowing they were to be sold, then Langan was guilty of a conversion, adding, "and it is not material to such conversion whether said defendant Langan at such time knew of plaintiff's [Mrs. Mohr's] ownership of the goods or not"; (3) that if Leonori received the goods at his auction house, and sold them on account of Mrs. Smith or of Langan, then he (Leonori) was guilty of a conversion, and added, "and you are further instructed that, in order to such holding of the defendant Leonori, it is immaterial whether or not said defendant Leonori had any knowledge at the time of plaintiff's ownership of the goods." There was a verdict for the plaintiff for $592.91, which was reduced to $500 by remittitur, and defendants Langan and Leonori appealed to the St. Louis court of appeals. That court affirmed the judgment of the circuit court (77 Mo. App. 481); but, upon motion for rehearing, it appearing that its decision was in conflict with the decision of the Kansas City court of appeals in Coen v. Watkins, 62 Mo. App. 502, the case was transferred to this court, as required by section 6 of the amendment of 1884 to article 6 of the constitution, and under that provision of the constitution the case must be determined here "as in case of jurisdiction obtained by ordinary appellate process."

Kinealy & Kinealy and Shepard Barclay, for appellants. R. J. Delano and O. J. & R. Lee Mudd, for respondent.

MARSHALL, J. (after stating the facts).

1. The point of difference between the two courts of appeals is whether property seized under a writ of replevin and turned over to the plaintiff in the suit is in custodia legis or not. The St. Louis court of appeals holds that it is, while the Kansas City court of appeals holds that it is not. If it is, then the plaintiff in possession cannot sell it, and hence cannot pass a title to it, even to an innocent purchaser for value and without notice, and, incidentally, it cannot be levied upon under attachment or execution, or be replevied by a third person to the replevin action, during the pendency of that suit. If it is not, then the converse is true. There is an irreconcilable conflict of authority on this question. A full reference to, or a critical analysis of, the conflicting decisions, is impossible in the limited space proper to be observed in the decision of this case. Much of the difference arises from diverse statutory regulation, and some of it may be ascribed to the fact that some cases treat a replevin bond as similar in all essential respects to a forthcoming bond, while other cases draw a distinction between the effect of the writ when used by a third person to recover possession of property that has been seized by an officer under judicial process, and when it is used to recover property from a private citizen. Wells, Repl. §§ 476-480, discusses the reasons pro and con as given in the leading cases, which hold diverse views on the subject, and concludes that under the modern functions of the writ, to wit, to try title, the plaintiff who acquires possession of goods by means of a writ of replevin does not thereby acquire title to the property prior to the rendition of the judgment, and, having no title, he can convey none, pending the litigation, which will conclude or protect any one, simply by force of the possession and apparent title resulting from such possession acquired under the writ. Cobbey, Repl. (2d Ed.) § 706, holds to the doctrine that, pending the determination of the replevin suit, the property is in custodia legis, — the plaintiff has the possession, but stands substituted for the sheriff, — and that if the plaintiff in possession is wasting or destroying the property, or it has a peculiar value, so that in either case the loss cannot easily be compensated in damages, it is within the power of the court to appoint a receiver to care for it. In 20 Am. & Eng. Enc. Law (1st Ed.) p. 1065, the common-law rule is stated, that property in custody of an officer is in custodia legis, and cannot be retaken by replevin, except when the process under which it is held is unconstitutional, or the judgment void, and then it is said: "The rule now is, however, in most of the states, that an action of replevin may be maintained against an officer, for goods taken by him in execution, by any person having property in the goods other than the defendant in execution, and it may also be replevied by the owner from the vendee at the execution sale; but the defendant cannot maintain it. * * * Property which has been attached may also be taken from the hands of the officer by writ of replevin by any person entitled thereto, save the attachment debtor or the plaintiff in attachment." Id. p. 1070. The same authority (page 1074) states the rule to be: "Replevin lies for property replevied at the suit of any person other than the defendant in the first suit. The defendant, however, cannot maintain it while the...