Moore v. Ryan

• Decision Date: 13 June 1888
• Parties: W. W. MOORE, Respondent, v. G. G. RYAN, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 474

W. W. MOORE, Respondent, v. G. G. RYAN, Appellant.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Barton Circuit Court, HON. D. P. STRATTON, Judge.

Affirmed.

Statement of case by the court

This is an action of replevin for the recovery of the possession of a cow. The controversy grew out of the following state of facts: On the eighteenth of June, 1885, the plaintiff executed to defendant his chattel mortgage on the cow in question, and on a team of horses, to indemnify the defendant as surety for plaintiff on a certain note of that date to one C. H. Pool. The note was for one hundred and twenty-five dollars, and became due on the eighteenth day of December 1885. The mortgage is somewhat peculiar in its provisions viewed as one of indemnity from the principal debtor to his surety, as it is framed to justify a foreclosure by the mortgagee on the maturity of the note, without the surety having satisfied the same.

Some time before the maturity of the note, the plaintiff delivered up to the defendant the two horses, as he (plaintiff) was going out west to remain for a season, with the statement that they were thin, and the defendant could use them for the keeping, and he would be the better secured. The mortgage was not recorded. The cow was left in the plaintiff's possession, and his family continued to milk her during plaintiff's absence. While the plaintiff was thus absent about the first of February, 1886, the defendant advertised said property for sale under said mortgage. He claims that the cow was in view on the street at the time of the sale. He first put up the horses and sold them. They were knocked off to a third party at the sum of one hundred and thirty dollars, the purchaser, in fact, bidding in the horses for the defendant. The cow was then sold, and bid in by the defendant at the sum of twenty dollars. The cow remained, as theretofore, in the possession of plaintiff's family.

The plaintiff returned home about the thirteenth of February 1886. His evidence tended to show that when he first came home he did not know of the sale made by defendant; that defendant applied to him for some money, stating that it was needed to pay the interest on the note; that he let defendant have ten dollars, one-half of which was to pay such interest, and the other half to go to his mill account with defendant; that shortly afterwards defendant again applied to him for money, and he let him have fifteen dollars, five of which was for interest.

Defendant, in his testimony, wholly denied this payment of interest by plaintiff, though he admitted that plaintiff promised to raise the money to redeem the property, while plaintiff claimed that he did not propose to redeem the horses, but only the cow.

The defendant did not pay off the note to Pool until in April, 1886. The cow remained in plaintiff's possession until the following June, when she had a calf out in a pasture, when defendant claimed the right to hold her, and took her into possession, and plaintiff brought this action in a justice's court. While the case was pending there, defendant sold the horses to a third party. The case was tried before the court without a jury. Verdict and judgment for plaintiff. Defendant has appealed.

THURMAN & WRAY and ROBINSON & BOWLING, for the appellant.

I. After condition in a chattel mortgage is broken, and possession of the property taken by the mortgagee, the mortgageor cannot maintain replevin unless the mortgagee has accepted payment of the debt secured by the mortgage. Williams v. Rorer, 7 Mo. 556; Robertson v. Campbell, 8 Mo. 616; Sexton v. Monks, 16 Mo. 156; Lacy v. Giboney, 36 Mo. 320; Barnett v. Timberlake, 57 Mo 501; State ex rel. v. Adams, 76 Mo. 612; Beckham v. Tootle, 19 Mo.App. 596; State to use v. Carroll, 24 Mo.App. 361; Jackson v. Cunningham, 28 Mo.App. 354; Jones on Chat. Mort., secs. 454, 634, 636; 4 Kent's Comm. 138.

II. The chattel mortgage read in evidence and the testimony showing that defendant had not paid the Pool note when due, placed the title to the property in question, with the right to possession in plaintiff, as shown by authorities cited above. Respondent having failed to show payment of debt, interest, " " costs," " charges," and " expenses," he could not maintain an action in equity, much less at law for the recovery of this property.

III. The first instruction given at the instance of plaintiff is clearly erroneous. The ownership and right to possession of the property was in defendant. Again there was no evidence upon which to base the instruction; the amount of interest or data from which it could be ascertained is wanting. There was no evidence of " costs," " charges," and " expenses" required to be paid by the mortgagee before applying the proceeds of sale in payment of debt and interest.

IV. The instruction number one asked by defendant should have been given.

V?? Upon defendant's theory the sixth instruction asked by defendant should have been given. It is clear that the intention of defendant in purchasing the property was to hold the same for plaintiff as mortgagee, and plaintiff fully recognized and ratified his act in so doing by agreeing to pay the debt, etc. After being informed by defendant what he had done, and as plaintiff testified, he paid the interest on this debt long after sale and notice of all the facts.

VI. The burden of proof to show a right of possession is on plaintiff. Wells on Replevin, sec. 697. In this plaintiff has wholly failed.

BULER & TIMMONDS, for the respondent.

I. A sale of part of the mortgaged property by virtue of a power contained in the mortgage for a sum sufficient to pay the mortgage debt with costs and expenses, extinguishes the mortgagee's title to the chattels remaining unsold and the power of sale becomes ipso facto, void. Jones on Chat. Mort. [2 Ed.] sec. 798; Charter v. Stephens, 3 Denio [N. Y.] 33.

II. In this case there was no evidence that there were any costs, charges, or expenses. Defendant himself wrote and put up the sale notices and made the sale. If he had any claim for charges, or expenses, it was his duty to so state to plaintiff and show that fact in his defence. 1 Greenl. Evid. [Redfield's Ed.] sec. 79; Starkie on Evid. [9 Ed.] s. p. 589; Smith v. Crews, 2 Mo.App. 269; 3 Parsons on Contracts [6 Ed.] s. p. 244; Boardman v. Still, 1 Camp. 410; Wells on Replevin, sec. 381.

III. The declaration of law given by the court at the instance of the plaintiff properly ignored the question of costs, charges and expenses, because there was no evidence upon which to base a declaration embracing those items. Matthews v. Elevator Co., 59 Mo. 474; Newcomb v. Blakely, 1 Mo.App. 289; Russell & Co. v. Ins. Co., 55 Mo. 594.

IV. If it be conceded that as an abstract proposition of law the declaration should have gone further and required a finding that the sum realized on the sale of the horses was sufficient to pay costs and expenses as well as debt and interest, still in this case it is wholly immaterial, as it does cover the only question really in controversy between the parties, and the trial being before the court, the omission, if it was an omission, is at all events not a reversible error. Stone v. Spencer, 77 Mo. 361; Cooper v. Ord, 60 Mo. 431.

V. The case was tried upon the theory that the only claim that the defendant had or asserted against the mortgaged property was the debt and interest expressed in the note and that the only question in controversy was whether, after selling the horses for a sum sufficient to pay his claim, he (the mortgagee) could proceed to sell the other property not necessary for this purpose. The question in regard to costs and expenses of sale not having been raised in the trial court, it is too late for appellant to raise it now. He cannot try his case on one theory in the circuit court and another and totally different one in the appellate court. Bettes v. Magoon, 85 Mo. 580; Bray v. Seligman, 75 Mo. 31, 40.

VI. The position contended for by appellant amounts to this: That one man may execute a chattel mortgage to another on property consisting of numerous separate articles, each article of a value equal to the debt secured, and upon default and sale the first article sold may bring more than enough to pay the entire debt and all expenses, yet the mortgagee may go on selling till all are sold merely for the purpose of getting the proceeds of the mortgageor's property into his hands, and then paying the money over to him. This is contrary to reason, as well as to law and justice. Hungate v. Reynolds, 72 Ill. 425; Stromberg, v. Lindburg, 25 Minn. 531; Jones on Chat. Mort., sec. 797. The construction contended for by respondent is the one generally acted upon in practice. The present form of mortgages with power of sale was, we apprehend, but little used at the time the older decisions were rendered in this state in regard to the effect of default on the ownership of the property. The one in controversy in this case constitutes a contract which, we submit, clearly means that it shall be enforced in the manner specified, if at all, and though it may not preclude any other manner...