Pyeatt v. Powell

• Decision Date: 25 July 1892
• Docket Number: 103.
• Citation: 51 F. 551
• Parties: PYEATT et al. v. POWELL.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 551

PYEATT et al. v. POWELL.

No. 103.

United States Court of Appeals, Eighth Circuit.

July 25, 1892

Statement by SANBORN, Circuit Judge:

The defendant in error brought an action of replevin for certain mares and colts of the value of about $4,000, in the United States Court in the Indian Territory, against the marshal who had seized them on October 4, 1889, under an execution issued out of that court upon a judgment in favor of the plaintiffs in error, and against William P. McClellan, for $7,598.07. Plaintiff in his complaint alleged that he was the owner and entitled to the immediate possession of the animals, and plaintiffs in error, who were by order of the court substituted for the marshal as defendants, in their answer denied the plaintiff's allegations. On the trial it was established by undisputed evidence that on July 18, 1888, William P McClellan was justly indebted to the plaintiff in the sum of $4,936.11, and that on that day at Coffeeville, in the state of Kansas, he gave the plaintiff his two promissory notes for this aggregate amount, payable in a year, and in good faith made and delivered to him his chattel mortgage on the mares and colts that were then in being to secure these notes; that the mortgage provided that the mortgagor should retain possession of the property until default, and upon payment of the notes it should be void; that McClellan resided in the Indian Territory, and the mortgaged property at the date of the mortgage was, and continued to remain, in that territory that nothing was ever paid on this debt before the levy was made on October 4, 1889, in any other way than by the taking of the property itself by the mortgagee; and that the defendants had actual notice of the mortgage before they brought the suit, which resulted in the judgment under which the levy was made on the property. There was evidence tending to show that in the spring or early summer of 1889 McClellan delivered to the plaintiff possession of all the mortgaged property under an agreement that either he or the plaintiff might sell it if possible, and apply the proceeds on the debt, and if not sold before the notes fell due, plaintiff should credit McClellan $4,500 on the notes for this property, but the bona fides of this transfer was denied. That question, and all others within the issues, were submitted to the jury, and a verdict and judgment rendered for the plaintiff, to reverse which this writ was sued out. A part of the colts in controversy were foaled by the mortgaged mares in the spring of 1889.

John H. Rogers, for plaintiffs in error.

W. M. Cravens and George E. Nelson, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

There are 43 assignments of error in this case, but in the view taken by the court it will be necessary to consider but 3. The thirty-second assignment is that the court erred in refusing to charge the jury as follows:

'The court instructs the jury that, under the law in force in the Indian Territory at the time of the execution of the mortgage introduced in evidence in this cause, and at the time of the levy of the execution of the defendants, Pyeatt and Kirby, the title and ownership of the mortgaged property remained in the mortgagor until default, and after default until the mortgagor took open and visible possession of the property mortgaged. If, therefore, you believe from the evidence that the mortgage did not expressly embrace the increase of the mares mortgaged, and that the mares remained after default in actual possession of the mortgagor, William P. McClellan, and so remained until the levy of the defendant's execution, the colts foaled in the spring of 1889 were liable to defendant's execution, and especially is this true, if, at the time of the default or levy, it was no longer necessary for the colts to follow their dams for nurture.'

There was no error in this refusal. Under the common law, whose rules must govern here, a mortgage of personal property vests the title in the mortgagee subject to be defeated upon compliance with its conditions, and upon a failure to comply therewith such title becomes absolute. Story, Bailm. § 287, and cases cited; Stewart v. Hanson, 35 Me. 506; Talbot v. De Forest, 3 G.Greene, 586; Flanders v. Barstow, 18 Me. 357. The brood of all tame or domestic animals belongs to the owner of the dam or mother, and at common law the increase or young of mortgaged animals belongs to the mortgagee. Cattle Co. v. Mann, 130 U.S. 78, 9 S.Ct. 458; Jones, Chat. Mortg. § 149; Cahoon v. Miers, 67 Md. 573, 11 Atl.Rep. 278; Evans v. Merriken, 8 Gill. & J. 39.

That each of the following instructions was given by the court below to the jury is also assigned as error:

'The court further instructs the jury that the mortgage adduced and read in evidence by the plaintiff, Powell, contains a provision for the retention and possession of the mortgaged property by the mortgagor, McClellan, until the happening of some one of the events mentioned therein to cause a default; therefore the possession of the property by the mortgagor is not inconsistent with the terms of the mortgage, and the court pronounces the mortgage valid on its face, and binding between Powell and McClellan; and if the jury shall believe from the evidence that on the 18th day of July, 1888, said McClellan was justly indebted to said Powell and McClellan; and if the jury shall believe from the evidence that on the 18th day of July, 1888, said McClellan was justly indebted to said Powell in the sums of money for which said two notes which were read in evidence were executed, and that which said two notes which were read in evidence were executed, and that said mortgage was given in good faith to secure the payment of said notes, and if the jury shall also believe from the evidence that defendants Kirby and Pyeatt had actual knowledge and knew of said mortgage before the bringing of their suit and the obtaining of their judgment against the mortgagor, McClellan, in this court, then the mortgaged property should not be held subject to their execution, and the jury should find for the plaintiff, Powell. The court further instructs the jury that if you shall believe from the evidence that William P. McClellan, on the 18th day of July, 1888, was justly indebted to the plaintiff, Warren C. Powell, in the sum of forty-nine hundred and thirty-six dollars and eleven cents, as evidenced by the two promissory notes adduced and read in evidence on this trial, and that said McClellan executed the mortgage read to the jury to secure the payment of said notes, and that defendants Kirby and Pyeatt had actual notice and knew of said mortgage before the bringing of their suit and obtaining their judgment against the mortgagor in this court, and the jury shall also believe that said notes and mortgage were past due and unpaid before the issuance of the execution read in evidence, then the mortgaged property was not subject to said execution, and the jury should find for the plaintiff, Powell.'

The contention is that these instructions were erroneous on two grounds: First, because it was not competent for plaintiff to recover on this mortgage under his pleading; second, because it is claimed that this mortgage, which was executed in Kansas, was void as to the creditors of McClellan, because it was never filed as required by the following provisions of the statutes of Kansas:

'Every mortgage or conveyance intended to operate as a mortgage of personal property which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident. ' Gen.St.Kan. 1889, Sec. 3903.

As to the first ground, it is sufficient to say that the notes and mortgage were introduced in evidence without objection, and under the plaintiff...