Osborn v. Standard Sec. Co.

• Decision Date: 20 January 1928
• Citation: 4 S.W.2d 503,222 Mo.App. 1186
• Parties: W. L. OSBORN, APPELLANT, v. STANDARD SECURITY COMPANY, RESPONDENT. [*]
• Court: Missouri Court of Appeals

4 S.W.2d 503

222 Mo.App. 1186

W. L. OSBORN, APPELLANT, v. STANDARD SECURITY COMPANY, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

January 20, 1928

Rehearing Denied April 7, 1928.

Appeal from Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED.

Judgment affirmed.

Frank H. Lee and R. A. Pearson for appellant.

Owen & Davis for respondent.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

This is an action for damages for the alleged conversion of an automobile. The cause was tried to the court without a jury. The finding was for defendant and plaintiff appealed.

January 30, 1926, plaintiff purchased from the Southwest Over-land-Knight Company of Joplin, Missouri, an Overland sedan automobile. The purchase price including the insurance, etc. was $ 1256.50. Plaintiff traded or turned in on the purchase price a used car and gave an installment note secured by a chattel mortgage on the car for the balance. The installment note was for $ 677, payable in monthly installments of $ 43. February 1, 1926, the Southwest Overland-Knight Company assigned plaintiff's note and mortgage to the Commercial Investment Trust Company of Chicago. The mortgage was filed in the office of the recorder of Jasper county February 6, 1926.

December 24, 1925, prior to plaintiff's purchase, the Southwest Overland-Knight Company gave to the defendant security company of Joplin a chattel mortgage on the car plaintiff purchased, and other cars, to secure a note to defendant in the sum of $ 2150.16 for borrowed money, and this note was due in ninety days. Defendant's mortgage was filed December 25, 1925. At the time of the execution of defendant's mortgage the car plaintiff purchased was a new car and was, with other cars, on the floor of the sales room of the Southwest Overland-Knight Company in Joplin.

Plaintiff made his payments on the installment note as they came due until he had made four payments, but made these payments to the Southwest Overland-Knight Company, not knowing that his note and mortgage had been assigned as we understand the record. Some time in June, 1925 the Southwest Overland-Knight Company collapsed, its president fled the county, and Mr. Perigo, a representative of the Commercial Investment Trust Company, the assignee of plaintiff's note, induced plaintiff to turn the car over to him. According to plaintiff Perigo obtained possession of the car under the pretext that he would make the defendant company relinquish its claim and then return the car to plaintiff. After obtaining possession of the car Perigo placed it in a garage in Joplin. A few days thereafter the defendant brought replevin against the Commercial Investment Trust Company and the owner of the garage in which the car was placed to recover the car. No defense was made to the replevin suit and defendant here, plaintiff in the replevin suit, obtained the car and sold it under its mortgage.

There is no evidence in the record to justify the conclusion that the Commercial Investment Trust Company took possession of the car for any breach of condition of its mortgage, or for any purpose other than as plaintiff testified. Hence, the only questions for determination is the validity of defendant's mortgage as to plaintiff and the question of estoppel. Defendant's mortgage was prior to the investment company's mortgage, and the debt secured by it was in default. Therefore, it had a right to foreclose if its mortgage was valid as to plaintiff and if not estopped.

If it appears in the face of a chattel mortgage that the mortgagor is to retain possession and have power to sell and dispose of the mortgaged property in the course of his business for his own benefit, then the mortgage is fraudulent and void as to creditors and purchasers, because made to the use of the mortgagor, and will be so declared as a matter of law without regard to the intention of the parties. Sec. 2275, R. S 1919; Bullene v. Barrett, 87 Mo. 185; Hubbell v. Allen, 90 Mo. 574, 3 S.W. 22; Bank v. Powers, 134 Mo. 432, 34 S.W. 869, 35 S.W. 1132; Forgan v. Bridges, 281 S.W. 134. The right given the mortgagor by the mortgage to remain in possession with power to sell the mortgaged property in the ordinary course of business will not alone render the mortgage void, there must in addition be the right to convert...