Moore v. Price

• Citation: 70 S.W.2d 563,189 Ark. 117
• Decision Date: 23 April 1934
• Docket Number: 4-3450
• Parties: MOORE v. PRICE
• Court: Supreme Court of Arkansas

70 S.W.2d 563

189 Ark. 117

MOORE v. PRICE

4-3450

Supreme Court of Arkansas

April 23, 1934

Appeal from Lincoln Chancery Court; Harvey M. Lucas, Chancellor affirmed.

Judgment affirmed.

A. J Johnson and Clary & Ball, for appellant.

R. W Wilson, for appellees.

OPINION

MEHAFFY, J.

On April 11, 1932, the appellant, I. E. Moore, filed suit in the Lincoln Chancery Court, alleging that the appellees, J. P. Price, Lonie Price and A. J. Price were indebted to appellant in the sum of $ 13,111.67, evidenced by two promissory notes, one dated January 9, 1930, for $ 9,251.79, payable on November 1, 1931, bearing interest at 10 per cent. from date until paid and the other note dated May 22, 1931, due November 1, 1931, for the sum of $ 439.26 with interest at 10 per cent. from maturity, this last note being executed by J. P. Price; and a verified account for merchandise for the balance of the $ 13,111.67. To secure the payment of the indebtedness, J. P. Price and Lonie Price executed a mortgage on real estate and personal property.

Appellees had delivered to appellant 93 bales of cotton, worth approximately $ 3,000, to be credited on the indebtedness.

It was also alleged that practically all the personal property mentioned in appellant's complaint and covered by the mortgage sued on had been moved off the premises, and that the crops were being disposed of by appellees, and that all of the security was insufficient to pay the indebtedness.

It was also alleged that the appellees were insolvent and had no other property with which to meet their obligation; that they were fast exhausting their resources, making it entirely impossible for the appellant to collect his indebtedness. Appellant prayed judgment for the amount due him, for a foreclosure of his mortgage, and that a receiver be appointed to take charge of the property covered in the mortgage.

Appellant also, on April 11, gave notice to the appellees that he would, on April 14th at 10 o'clock A. M., apply to the Lincoln Chancery Court for the appointment of a receiver. On April 14th the appellees filed a demurrer to that part of the complaint asking for the appointment of a receiver. The chancellor heard the application for the appointment of a receiver, and denied the petition, and refused to appoint a receiver, under the authority of act 253 of the Acts of the General Assembly of 1931.

Thereafter, on April 18th, while the suit to foreclose the mortgage on the property was pending in the chancery court, appellant brought a suit in replevin in the circuit court of Lincoln County, for the same personal property. A demurrer and answer were filed to the complaint in the circuit court. In the answer appellees moved that the cause in the circuit court be transferred to the chancery court and consolidated with the foreclosure suit. This motion of appellees was granted, and the cause transferred to the chancery court.

When the suit was brought in the circuit court, appellant gave bond, and an order of delivery was issued and served. The appellees executed a bond and retained possession of the property.

There is no dispute about the indebtedness, and it is unnecessary to set out the evidence. After a hearing, the chancery court gave judgment in favor of the appellant against the appellees for $ 10,787.18. This was the amount found by the court to be due after giving appellees credit for the 93 bales of cotton, and said judgment was declared by the court to be a first lien on the real and personal property described in the mortgage. The lands were ordered sold, and the personal property, at the value fixed by the court, was delivered to the appellant.

The appellant claimed that he was entitled to the usable value of the personal property or rent on the personal property during the time it was kept by appellees after the replevin suit was begun. A petition was filed by appellant, alleging that appellees had refused to deliver the following personal property: "First: 1 disc harrow and disc plows valued at $ 200. Second: Corn valued at $ 100. Third: Cotton seed valued at $ 20. Fourth: Hay valued at $ 30."

The chancellor then rendered a final decree, holding that at the time the property was rebonded there were 100 bushels of corn of the value of $ 50 and no cotton seed, and $ 30 worth of hay, making $ 80, and gave judgment for that amount. The chancellor also found that the disc harrow and plows were tendered to appellant, and that he declined to accept them.

The case is here on appeal, and the appellees prosecute a cross-appeal as to that part of the decree giving judgment for $ 80 for the corn and hay.

Appellant first contends that he had a right under §§ 7403, 7410 and 8654A of Crawford & Moses' Digest to prosecute his suit in replevin. He contends also that the mortgagee is the holder of the legal title and can maintain replevin on default. He cites and relies on Perry County Bank v. Rankin, 73 Ark. 589, 84 S.W. 725, 86 S.W. 279, and Van Pelt v. Russell, 134 Ark. 236, 203 S.W. 267. The statute itself settles this question. It reads as follows: "In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right of possession."

The mortgagee has the legal title, and, because of that, may bring a suit in replevin, but that is not for the purpose of getting possession of and keeping the personal...