Phillips v. Schall
| Decision Date | 15 February 1886 |
| Citation | 21 Mo.App. 38 |
| Parties | EDWARD A. PHILLIPS, Appellant, v. A. SCHALL ET AL., Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Benton Circuit Court, HON. JAS. B. GANTT, Judge.
Affirmed.
Statement of case by the court.
This is an action of replevin, for the recovery of 7,515 railway ties. The usual delivery order was made, under which the sheriff took possession of the property and delivered it to plaintiff. The suit was begun against defendant Schall alone. His answer was a general denial, and further alleged that he was in possession of the ties as the agent and employe of Bancroft and McDaniel, the owners of the ties. On their application, Bancroft and McDaniel were made parties defendant and answered, alleging that they were partners that Schall held possession of the ties at the time of the institution of the suit, as their agent; and after denying generally the allegations of the petition, they averred that the value of the ties was one thousand and five hundred dollars, that they were damaged in the sum of five hundred dollars, by the wrongful taking, and demanded return of the property, etc.
On trial before a jury, the plaintiff testified that in the fall of 1881 he owned a certain tract of land in Benton county valuable principally for the timber on it; that he never saw the land; that he then sold the land to one Smalley for the sum of three hundred dollars, who entered into the possession thereof under said sale. The sale was by parol; and that he made a contract with Smalley, who did not have the money then to pay for the land, that he (Smalley) might go upon the land and make ties out of the timber upon it, but that the ties were not to be removed from the land until Smalley paid for the land.
On objection of defendants so much of the plaintiff's testimony as pertained to the conditions on which Smalley might make the ties, was by the court excluded.
The plaintiff further proposed to testify that he was never in possession of the ties, except as owner of the land sold to Smalley, and that the ties were made of the timber thereon and that the ties remained upon the land until removed by defendants. This the court excluded.
Plaintiff further testified that in June, 1882, after Smalley had made said ties, he (Smalley) wished to borrow some money from a bank in Sedalia, and that plaintiff went on his note as surety, and that, to secure him, Smalley gave him a receipt in the nature of an acknowledgment of so much money for the ties. This was also excluded as immaterial.
Plaintiff further testified that after this, in July, 1882, to further secure himself, he took from Smalley a chattel mortgage on said ties. This mortgage was offered in evidence by plaintiff. To its admission the defendants objected for the reason that the same was not recorded in the county where the mortgageor resided. It was recorded in Benton county, and it was admitted that the mortgageor resided in Pettis county. The objection was sustained. Thereupon plaintiff offered to show that defendants had notice of the mortgage; but this was also excluded.
Thereupon the plaintiff took a non-suit; and on motion of defendants the court proceeded with the ascertainment of the value of the property taken under the delivery order, and the damages. The value was assessed at $1,500, and judgment rendered accordingly against plaintiff and his sureties. From this judgment plaintiff prosecutes this appeal.
WM. S. SHIRK and JAS. H. LAY, for the appellant.
I. It was error to exclude the evidence showing the contract between plaintiff and Smalley, as to the ties. It was necessary for Smalley to perform the condition agreed upon between them before he acquired title to the ties, or a right to their possession or removal. 7 Wait's Actions & Defences, 354, et seq.; Ibid, 356. The contract between them amounted to a license from plaintiff to Smalley to enter upon his land and cut timber upon condition that the ties made out of the trees should not be moved until certain money should be paid. Such a license is legal and will be enforced. Granby Mining Co. v. Turley, 61 Mo. 375.
II. Until defendants showed that they were creditors of Smalley, and had seized the ties as such, or were purchasers from him in good faith, the evidence offered and excluded and the mortgage were competent. Neither the statute as to the recording of chattel mortgages (section 2503), nor that concerning conditional sales (section 2507), was intended to protect mere trespassers, as againt a bona fide mortgagee or conditional vendors. Such sales are only invalid as against creditors and subsequent purchasers in good faith without notice. Coover v. Johnson, S.Ct. Mo., not yet reported (21 Cent. L. J. No. 23).
WILKERSON & MONTGOMERY, for the respondents.
I. The defendants were in possession of the ties in controversy, and their possession made them prima facie the owners thereof. 1 Greenl. Evid., sect. 34; Magee v. Scott, 9 Cushing (Mass.) 148; Milling v. Butts, 35 Me. 139; Vining v. Baker, 53 Me. 544.
II. The burden was on plaintiff to show that at the time the property was taken in the replevin suit, he had the general or special property in the chattels taken and the right of immediate and exclusive possession. This he failed to do. 2 Greenl. Evid., sect. 561; Collins v. Evans, 15 Pick. (Mass.) 63; Pilkington v. Trigg, 28 Mo. 95.
III. The evidence as to the contract between plaintiff and Smalley was properly excluded; and so as to the writing offered in evidence; and so as to the chattel mortgage. The mortgageor resided in Pettis county and the mortgage was not recorded in that county. Rev. Stat., sect. 2503. Besides, there was nothing to show that the ties were included in the mortgage, and there was no offer to prove that they were. The fact that plaintiff had full notice of the existence of said mortgage would make no difference. Byron v. Phenix, 18 Mo. 13; White v. Graves, 68 Mo. 218; Greely v. Read ing, 74 Mo. 309. If the excluded evidence had been admitted it would not have entitled plaintiff to recover.
IV. Defendants did not have to prove that they were creditors or that they were not trespassers. The law presumed they were the owners of the ties.
It is conceded that at the time of the institution of this action the defendants were in possession of the property. Possession of personal property is prima facie evidence of ownership, and is presumptive evidence that the possession is rightful. 1 Greenl. Evid., sect. 34; Magee v. Scott, 9 Cush. 150; Milling v. Butts, 35 Me. 139. " Possession indeed may be considered the primitive proof of title and the natural foundation of right." Linscott v. Trask, 35 Me. 151.
In the action of replevin, therefore, it devolves upon the plaintiff to prove that at the time of the caption " he had the general or special property in the goods taken, and the right of immediate and exclusive possession." 2 Greenl. Evid., sect. 561. The gist of the action is the wrongful detention and not the original taking. Melton v. McDaniel, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95. The onus was on the plaintiff, under the general denial, to establish his title to the specific property in question, and his right to the immediate and exclusive possession. Morgner v. Biggs, 46 Mo. 66; Gray v. Parker, 38 Mo. 165.
The important question, therefore, for determination is, did the plaintiff offer competent and adequate evidence, which was excluded by the court, to prove title in him to the ties, and his right to the immediate possession thereof? If he did not his non-suit was voluntary, and his appeal must fail.
Conceding for the purposes of this discussion, that plaintiff was the owner of the land at one time from which the ties were cut and taken, this of itself was not sufficient to enable him to recover in this action, where he was not in actual possession at the time...
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