New England National Bank of Kansas City v. Northwestern National Bank of Chicago
| Decision Date | 24 December 1902 |
| Citation | 71 S.W. 191,171 Mo. 307 |
| Parties | NEW ENGLAND NATIONAL BANK OF KANSAS CITY, MISSOURI, v. NORTHWESTERN NATIONAL BANK OF CHICAGO et al., Appellants; THIRD NATIONAL BANK OF SPRINGFIELD, MASSACHUSETTS, Interpleader |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed and remanded (with directions).
Haff & Michaels, Isaac E. Congdon and John W. Parish for First National Bank of Omaha, appellant; Beardsley, Gregory & Kirshner and Robert F. Walker for State Bank of St. Louis and Elmore & Cooper, appellants.
Baumbaugh did not acquire actual or constructive possession of any of the cattle on or before October 14, 1898. (a) He never personally, at any time had possession. Claflin v Rosenberg, 42 Mo. 449; Swiggett v. Dodson, 38 Kan. 707; Harris v. Pence, 93 Iowa 48, 61 N.W. 927. (b) Nor did Baumbaugh ever have any constructive possession of the cattle. Doak v. Brubaker, 1 Nev. 218; Brunswick v. McClay, 7 Neb. 137; Hurlburd v Bogardus, 10 Cal. 519; Flanagan v. Wood, 33 Vt. 332; Bank v. Gilbert, 174 Ill. 491; Sutton v. Ballon, 46 Iowa 517; Claflin v. Rosenberg, 42 Mo. 449; How v. Taylor, 52 Mo. 598; Worley v. Standley, 22 Mo.App. 552.
Charles H. Dummer and Dobson & McCune for Northwestern National Bank of Chicago, appellant.
(1) The T and C cattle described in the bill of sale from Gillett to Baumbaugh and the mortgage from Baumbaugh to the A. J. Gillespie Company, both dated October 4, 1898, were not only not owned by the grantors but were not in existence in contemplation of law. The property mortgaged not being in existence at that time, the mortgage was absolutely void. Jones, Chattel Mortgages, sec. 138; 5 Am. and Eng. Ency. Law (2 Ed.), 979; Jones v. Richardson, 10 Met. 488; Looker v. Peckwell, 38 N. J. L. 253; Hutchinson v. Ford, 9 Bush (Ky.) 318; Long v. Hines, 40 Kan. 216; Rochester Distillery Co. v. Racy, 142 N.Y. 570; Anchor Brewing Co. v. Burns, 52 N.Y.S. 1005. (2) The bill of sale from Gillett to Baumbaugh, of October 4, 1898, was also a nullity and absolutely void, for the same reason, i. e., the non-ownership and existence of the property. Tiffany on Sales (Ed. 1895), p. 24; 20 Am. and Eng. Ency. Law (2 Ed.), 916; Low v. Pugh, 108 Mass. 347; Lunn v. Thornton, 1 Manning, Granger & Scott 379; Robinson v. Hirschfelder, 59 Ala. 503; Head v. Goodwin, 37 Me. 181. (3) The mortgage of Baumbaugh to the A. J. Gillespie Commission Company is void as to the T and C cattle in controversy, for the further reason that it does not by its terms attempt to convey future-acquired property. Jones, Chattel Mortgages (2 Ed.), sec. 173 A.; Tapfield v. Hillman, 6 Manning & Granger 245; Montgomery v. Chase, 30 Minn. 132; Farmers Loan Co. v. Bank, 15 Wis. 465 (Old Ed. 424); Phillips v. Both, 58 Iowa 499; Iowa Bank v. Taylor, 67 N.W. 677; Pennock v. Cole, 23 Howard 127. (4) As the Gillespie Commission Company, the mortgagee, and its assignee, the Springfield Bank, never at any time got possession of the T and C cattle prior to the time our lien attached, or in fact at any time, the Springfield Bank has no right, in law or equity, to said cattle or the proceeds of the sale thereof, as against the Northwestern National Bank, which did obtain actual possession thereof under its chattel mortgage. Single v. Walsh, 20 Wis. 419 (Old paging 398); Griffith v. Douglas, 73 Me. 532; Lamson v. Moffitt, 61 Wis. 153; Rochester Brewing Co. v. Racy, 142 N.Y. 570; Chase v. Denny, 130 Mass. 566; Cameron v. Marvin, 26 Kan. 612; 5 Am. and Eng. Ency. Law (2 Ed.), 981, note 1; Long v. Hines, 40 Kan. 216; Barse Co. v. Guthrie, 50 Kan. 467. (5) As neither Gillett nor Baumbaugh owned or had possession of the T and C cattle, described in the mortgage under which we claim, on October 4, 1898, the time of the execution of the mortgage by Baumbaugh to the A. J. Gillespie Commission Company, and possession was not delivered to the mortgagee at the time, said mortgage last named was absolutely void as against all subsequent purchasers and creditors, under the statutes and decisions of Kansas. Section 1, ch. 120, G. S. Kansas, 1897; sec. 3, ch. 112, same; Swigart v. Dodson, 38 Kan. 702; Frankhouser v. Fisher, 54 Kan. 738; Cameron v. Marvin, 26 Kan. 612; Smith v. Etley, 55 Kan. 71; Phillips v. Reitz, 16 Kan. 396; Railroad v. Couse, 17 Kan. 571; Long v. Hines, 40 Kan. 216; Barse v. Guthrie, 50 Kan. 467.
Stewart Taylor and C. O. Tichenor for the Third National Bank of Springfield, respondent.
This bank claims under a chattel mortgage executed by Baumbaugh dated October 4, and recorded October 6. The others claim under mortgages dated October 14, executed by Gillett. The first one covers four bunches of cattle, the Clark or J. M., the Thompson, the Gangner and the St. Amand. The first were bought August 10, by Gillett, who was to pay a mortgage on the same nearly equaling their cost, and all that remained to be done at that date was the payment of the purchase money and the delivery. The notes in the first mortgage were payable to the Gillespie company which took up the mortgage on the J. M. cattle on October 3, and repaid itself from the sale of the Baumbaugh notes which it sold on October 5 for $ 24,283.54, which sum about equaled the cost of the four bunches. The J. M. cattle were delivered to Nail for Baumbaugh October 8, and were put on the latter's farm October 13. The Thompson, the Gangner and St. Amand cattle were bought by Gillespie in order to comply with his bill of sale of October 4, to Baumbaugh, and as he agreed to do, on the 9th, 11th and 13th of October, respectively; they were never in Gillespie's possession, but were delivered direct to Nail for Baumbaugh and prior to October 14. Under the statutes of Kansas, where these mortgages were made, a sale was good without a delivery. Railroad v. Couse, 17 Kans. 571. Such a sale was good at common law. Briggs v. United States, 143 U.S. 354. A sale of goods to be delivered in the future is good in Missouri. Crawford v. Spencer, 92 Mo. 505. And if the sale to Baumbaugh was valid, others can not attack his mortgage. And when delivered in pursuance of this kind of a contract and in accordance with its terms, the vendee must accept. Water & Light Co. v. City, 140 Mo. 157. A purchaser is charged with notice of every fact shown by the records and is presumed to know every other fact which an examination suggested by the records would have disclosed. Bank v. Freeman, 171 U.S. 629; Shaffer v. Pickrell, 22 Kan. 434; Howard v. Bank, 44 Kan. 549; Britain Dry Goods Co. v. B. S. & R., 60 Kan. 263. These cattle were never in Gillett's possession; were bought for Baumbaugh and were delivered to him; they could not have been seized under an execution or attachment against Gillett. Love v. Jones, 4 Wall. 470; Bank v. Bank, 50 Mo.App. 95; Cameron v. Marvin, 26 Kan. 612; Walker v. Vaughan, 33 Conn. 584; 2 Sumner 531; Rutherford v. Stewart, 79 Mo. 216; France v. Thomas, 86 Mo. 80; King v. Graves, 51 Mo.App. 544. The acquisition of the property and the execution of the mortgage may be parts of the same contract and so nearly connected in point of time as to become parts of the same transaction. France v. Thomas, 86 Mo. 80; Stewart v. Smith, 36 Minn. 83. The character of the transaction must be determined by the intention of the parties to it. King v. Graves, 51 Mo.App. 544. An agreement in writing to give a mortgage or a mortgage definitely executed, or an imperfect attempt to create a mortgage, will create a mortgage in equity. Martin v. Nixon, 92 Mo. 34; In re Clark, 36 Ch. Div. 356; s. c., 13 App. Cas. 546. The question of transfer to and vesting title in a purchaser always involves an inquiry into the intentions of the contracting parties. Ober v. Carson, 62 Mo. 21. Even in this State the delivery of possession to a third party is sufficient. Irwin v. Arthur, 61 Mo. 387. In Kansas employment of mortgagor does affect change of possession. Dolan v. Denmark, 35 Kan. 308; Dayton v. Bank, 23 Kan. 421. Sharing in profits does not give interest in property. Ashby v. Shaw, 82 Mo. 81; Drennan v. Life Assurance Co., 113 U.S. 51. It was proper to consider the whole transaction, bill of sale, mortgage, verbal agreements and payments. Brown v. Morange, 108 Pa. 75. If a part of the agreement only is put in writing, matter left out may be supplied by parol. Black River L. Co. v. Warner, 93 Mo. 384; Plumb v. Cooper, 121 Mo. 676; Life Ins. Co. v. Crevans, 60 Mo. 390; Weeks v. Medler, 20 Kan. 57. Even if the execution of the mortgage was for the accommodation of Gillett, it was valid. Moffat v. Green, 149 Mo. 54; Alexander v. Graves, 25 Neb. 453. If a bill of sale is regular on its face and one is in possession under it, the burden is on him who assails it. Albert v. Besil, 88 Mo. 150.
This is a bill in equity by the plaintiff as a stakeholder to require the defendants to interplead for the sum of $ 14,971.03, in its hands, resulting from the sale of 403 head of cattle, which were consigned to it by the defendants, to be sold by it to the best advantage, and the proceeds to be held by it pending an amicable settlement among the defendants of their respective claims. They were unable to agree and therefore the plaintiff filed this bill of interpleader to have the claimants litigate their rights.
The defendants interpleaded for the fund. Pending the determination of the case the parties agreed that instead of paying the money into court, the plaintiff might retain the fund, paying interest thereon. The trial court adjudged the fund to the Third National Bank of Springfield, Massachusetts, and the other defendant banks and Elmore & Cooper appealed.
The abstract of the record embraces five hundred and twenty-five printed pages. The briefs of counsel aggregate two...
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