Ottumwa Nat. Bank v. Totten

• Decision Date: 30 September 1905
• Citation: 114 Mo. App. 97,89 S.W. 65
• Parties: OTTUMWA NAT. BANK v. TOTTEN et al.
• Court: Missouri Court of Appeals

89 S.W. 65

114 Mo. App. 97

OTTUMWA NAT. BANK v. TOTTEN et al.

St. Louis Court of Appeals. Missouri.

September 30, 1905.

1. ESTOPPEL — ATTACHING PROPERTY HELD AS PLEDGE.

One, by attaching property, is not estopped to maintain that he was holding it at the time as pledgee of the debtor; an attachable interest being retained by the pledgor.

2. ATTACHMENT — INTERPLEA — EVIDENCE.

The sole issue on an interplea in an attachment suit is the ownership of, and right of the interpleader to, the property; and, the right of the interpleader being predicated solely on his mortgage from the debtor, plaintiff may overcome this by showing that it was holding the property as pledgee of the debtor at the time of the mortgage by the debtor to interpleader.

3. CHATTEL MORTGAGES — DEFECTIVE DESCRIPTION — CURE BY DELIVERY OF PROPERTY.

An insufficient description of property in a chattel mortgage is cured as against one attaching the property, where before the attachment possession was delivered to the mortgagee.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Action by the Ottumwa National Bank against George W. Totten. W. L. Madden filed an interplea. From a judgment for interpleader, plaintiff appeals. Reversed.

The issue in this case arises on an interplea. The case was here before, and is reported Ottumwa National Bank v. Totten, 94 Mo. App. 596, 68 S. W. 386. The material facts in the present controversy are as follows: The Ottumwa National Bank brought its suit by attachment in the circuit court of Clark county against one George W. Totten, defendant, and under a writ of attachment the sheriff levied upon and seized, as the property of Totten, four red cows, two Jersey cows, one black cow, and one spotted cow, nine mules (two three year old, one two year old, and six spring mules), four three year old sorrel mares, and one ten year old gray mare. At the April term, 1900, of said court, Wm. L. Madden filed his interplea, claiming said property as his own; he having a chattel mortgage thereon, and having been put into possession of the property by the mortgagor, Totten, before Totten became defendant in the attachment suit. The issues made up on this interplea were tried. The finding was for the interpleader. The court sustained a motion for new trial, and an appeal therefrom was perfected to this court, where said action in sustaining the motion was affirmed, as will fully appear in Ottumwa Nat. Bank v. Totten et al., 94 Mo. App. 596, 68 S. W. 386. The cause coming on a second time at the October term, 1902, of the circuit court, the plaintiff in attachment, the bank, filed an amended answer to the interplea, by which it first denied each and every allegation therein contained, and, second, it alleged affirmatively that before and at the time of the execution of the chattel mortgage from the defendant in attachment, Totten, to the interpleader, Madden, on which mortgage the interplea is bottomed, the plaintiff in attachment, the bank, was in the actual possession of the property in suit, holding the same as a pledge to secure an indebtedness due from the defendant in attachment, Totten, to said bank, plaintiff in attachment. By replication the interpleader denied that the bank held such property as a pledge at the time of the execution of his (the interpleader's) mortgage. The issue thus made up was tried to a jury. It will be noted that there was no allegation or claim of fraud in connection with the chattel mortgage under which the interpleader claims title to the property.

The evidence tended to show that the attachment defendant, Totten, occupied the Ambrose Folker farm and was largely indebted to the bank, plaintiff in attachment; that Mr. Stephens, cashier of the bank, had been out on or about the farm occupied by Totten for several days looking after the bank's interest; that about this time, or shortly before, Totten had shipped a part of a car load of cattle to Chicago, and his neighbor, Madden, who is interpleader here, had shipped a few head in the same car. The bank, plaintiff in attachment, having learned that Totten had shipped, and holding a mortgage on Totten's stock, took possession of both Totten's stock and those of Madden contained in the car, asserting its right under its chattel mortgage, and collected the money for the sale thereof and credited the same on Totten's indebtedness. To make this good to his neighbor, Mr. Madden, Totten on Friday night before the attachment executed a chattel mortgage on the property hereinbefore mentioned, securing to the interpleader, Madden, the amount of money for which Madden's cattle were sold in Chicago and which was appropriated by the bank as Totten's money. There is no controversy that the debt of Totten to Madden and the mortgage in connection therewith was not legitimate. The chattel mortgage mentioned was recorded on Saturday, and on Sunday Totten, the mortgagor, notified the interpleader, Madden, that he had better take possession of the property mentioned in the mortgage, or that some one else would and he would lose his debt, and in fact pointed out the stock and turned over possession thereof to the interpleader, Madden. This was on the same day, but before, the attachment was levied. While Madden and his hired men were driving the stock which had theretofore been turned into their possession by the mortgagor, Totten, from his farm, along the public road, to Madden's farm, the sheriff, with a writ of attachment against the property of Totten, overtook or intercepted him, and seized the cattle, mules, and horses mentioned as the property of Totten. Afterwards the plaintiff in attachment petitioned the court and obtained an order authorizing the sheriff to sell said property under the statute, which has been done and the proceeds thereof remains in the hands of the sheriff. The attachment has been sustained, and final judgment on the merits entered against defendant in attachment, Totten.

On the trial in the circuit court the trial judge held the parties to the issue of identity of the property, and tried the case upon the theory that, if the property levied upon was the identical property upon which the interpleader had the mortgage, then the interpleader should recover. All of the rulings of the trial judge upon the objections to testimony, as well as instructions, to the jury proceeded upon this theory. The plaintiff in attachment sought to prove that at the time the chattel mortgage was executed by Totten to Madden, the interpleader, the said property mentioned in the mortgage was then in the possession of the bank through its agent and cashier, Mr. Stephens, who was then and had been for several days on or around Totten's farm, and that said property was being held by Stephens under an arrangement with Totten, defendant in attachment and mortgagor to Madden, as a pledge to secure certain indebtedness owing by Totten to the bank, and not as mortgagee in possession under the mortgage which the bank held against certain of Totten's property. The court refused to permit any evidence of the alleged pledge to go to the jury. The court also refused instructions asked by appellant along the same line, to which exceptions were saved by appellant. As said above, the court held that the only issue in the case was the identity of the property. The plaintiff in attachment also, by numerous and timely objections, challenged the sufficiency of the description of the property in the mortgage to interpleader, Madden. The jury returned a verdict for the interpleader, upon which judgment was entered, and, after unsuccessful motions for new trial and in arrest, the plaintiff in attachment brings the case here for review, complaining that the circuit court erred in refusing to permit it to show that it held possession of the property as a pledge at the time of the mortgage to Madden, and also that the description in the chattel mortgage was insufficient as against the appellant. The assignments will be noticed in their order.

Berkheimer & Dawson, for appellant. Jno. D. Smoot and J. A. Whiteside, for respondent.

NORTONI, J. (after stating the facts).

The respondent argues that, inasmuch as the bank attached the identical property in suit and by said attachment affirmed the right of property therein to be in the attachment defendant, Totten, it is thereby estopped from saying and maintaining on the trial of the interplea that it was holding said property, at the time of the execution of the mortgage to the interpleader, as a pledge from Totten. We do not think that the fact that appellant was holding the property as pledgee of Totten would preclude appellant from attaching the property so held by it as pledgee. The two acts are in no wise inconsistent, but, on the contrary, both affirm or recognize the right of property in Totten. By the attachment against Totten, appellant affirmed the right of...