S. F. Bowser & Company, Inc., a Corp. v. Hartnett
| Decision Date | 18 June 1925 |
| Citation | 273 S.W. 420,217 Mo.App. 147 |
| Parties | S. F. BOWSER & COMPANY, INC., a corporation, Appellant, v. JOHN HARTNETT, et al., Respondents. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Moses Hartman, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Grant & Grant, for appellant.
(1) Under the circumstances of this case, with successive liens upon the property and conflicting claims of title to it, it was proper that the mortgage should be foreclosed in a court of equity. Rubey v. Coal & Mining Co., 21 Mo.App 159; Trust Co. v. McDonald, 146 Mo. 467-479; Wolff v. Ward, 104 Mo. 127; State ex rel. v Evans, 176 Mo. 310-315; Trust Co. v. White, 169 Mo.App. 5; Schloss v. Dattilo, 197 Mo.App. 656. (2) The filing with the Recorder of Deeds of a chattel mortgage signed by an agent and given to secure the purchase price of the property mortgaged, is constructive notice of its contents. Windle v. Citizens National Bank, 204 Mo.App. 606; Alexander v. Graves, 25 Neb. 453; Wogan v. Citizens Bank, 149 P. 411; Jones on Chattel Mortgages (5 Ed.), sec. 247A.; Brittain v. Blanchard, 60 Kan. 263. (3) The court erred in permitting defendant, M. Larner, to testify, over plaintiff's objection, that there was no direct or constructive notice of the chattel mortgage. (4) Defendant, M. Larner, had knowledge of facts sufficient to put him upon inquiry as to whether or not there was a mortgage against the property. Brayton v. Beal, 73 S.C. 308; Holmes v. Commission Co., 81 Mo.App. 97; McNichols v. Fry, 62 Mo.App. 13.
Joseph Boxerman for respondent.
(1) Where there are no adverse claims or titles to be determined, the action for the foreclosure of a chattel mortgage is a purely legal action. Benton County et al. v. Morgan et al., 163 Mo. 661; Sommerville et al. v. Hellman et al., 210 Mo. 567; Brown v. Koffler, 133 Mo.App. 494; Harrison et al. v. Doyle et al., 163 Mo.App. 602; Schloss v. Dattilo, 198 S.W. 1137. (2) A chattel mortgage signed by one who is not the owner of the property or by an agent lies outside the chain of title, and the recording thereof does not impart notice to an innocent purchaser who deals with the owner. New England National Bank of Kansas City v. Northwestern National Bank of Chicago et al., 171 Mo. 307; Windle et al. v. Citizens National Bank et al., 204 Mo.App. 606.
This is a suit in equity brought by appellant as mortgagee under a chattel mortgage given to secure the purchase price of certain gasoline pumps. Under the allegations of the petition, the suit is to find the amount due plaintiff from defendant Hartnett; to foreclose the rights to said property of all defendants; to have the rights of plaintiff as mortgagee declared superior to all claims of defendant Larner; to have the property sold and the proceeds applied to the indebtedness due plaintiff, and to have judgment entered for any deficiency.
The court sustained what is termed a "demurrer to the evidence" in favor of defendants Ernest and Larner, and denied the injunction prayed for and rendered judgment in favor of the plaintiff against defendant Hartnett in the sum of $ 597.69. Plaintiff appeals.
The petition alleges that Norman B. Howard, on December 3, 1920, as agent for the defendant John Hartnett, and in pursuance of an agency contract existing between them, purchased a gasoline filling outfit from plaintiff for $ 1437.35; that $ 284 was paid at the time, the balance being payable in nine monthly installments. It is alleged that Hartnett, through his agent Howard, gave a chattel mortgage on said property to plaintiff to secure the deferred payments. It is then alleged that the instrument of writing was duly filed in the office of the Recorder of Deeds in the city of St. Louis, and that thereafter there was paid the further sum of $ 672.44, but that the remainder of the purchase price is still due and unpaid, and that defendant Hartnett has failed to pay same, and that therefore there is due plaintiff on account of said indebtedness the sum of $ 480.44, together with interest and attorney's fees. The petition then alleges that after the execution and delivery of the chattel mortgage and the recording of same, the defendant Hartnett attempted to convey said personal property to the defendant Ernest, as trustee for the East St. Louis Gasoline Company, to secure an indebtedness alleged to be due said company from Hartnett, and that thereafter, on or about May 15, 1922, Ernest as such trustee attempted to sell said property under said mortgage to defendant Larner, and that defendant Hartnett attempted to sell and convey said property to defendant Larner. It is then alleged that defendants Larner and Ernest claimed an interest in said property by reason of the foregoing, and that defendant Larner claims that his title and interest under the conveyance aforesaid are superior to the title and interest of plaintiff as mortgagee, and that Larner refuses to surrender said property to plaintiff.
Defendant Larner answered, first, by a general denial, and then pleaded that he was an innocent purchaser for value of the property; that he did not have any notice or knowledge of any kind that said property was mortgaged.
Defendant Ernest answered separately, and denied that Hartnett conveyed to him as trustee for the East St. Louis Gasoline Company the property mentioned in the petition, and denied further that he attempted to foreclose under said mortgage, or that said property was ever covered by any mortgage of the plaintiff securing any claim of the East St. Louis Gasoline Company.
Defendant Hartnett, though duly summoned, filed no answer but made default.
Little dispute arises on the facts. The evidence shows that defendant Hartnett in December, 1920, was erecting a gasoline station at Delmar and Lake avenues in the city of St. Louis. One Norman B. Howard was his contractor erecting the filling station for him. Plaintiff's salesman appeared and contracted to sell the necessary pumps and equipment for said station. After the sale was agreed upon between plaintiff's agent and Hartnett, the latter requested the contractor, Howard, to sign the contract and chattel mortgage, for the reason it is agreed that Howard as a contractor could buy the equipment cheaper. This was understood and suggested by plaintiff's agent, and so Howard signed the contract and chattel mortgage, all being one paper. The defendant Hartnett made the first payment of $ 284.50, and thereafter the equipment was delivered and installed at Delmar and Lake avenues in this city and was used for some time by Hartnett. The contract, or bill of sale, containing the chattel mortgage was duly recorded January 4, 1921.
Howard, as a witness, testified that he signed the contract and chattel mortgage in the presence of defendant Hartnett and one W. E. Grooms, plaintiff's salesman, and that he did so because Hartnett asked him to sign same, but that Hartnett himself made the first payment, and that the pumps were delivered to Hartnett and used by him; that the witness had no property interest in the filling station, and that he did not purchase the pumps for his own use.
Witness Barton N. Grant testified that he, as attorney for plaintiff, made demand of defendant Larner in June, 1922, for possession of the pumps, and that Larner told him he had bought same from John Hartnett free and clear of all encumbrances. He also testified that the pumps were advertised for sale by defendant Ernest under a chattel mortgage.
It is conceded that the contract of sale and chattel mortgage was executed in the name of Norman B. Howard, though in fact it was an accommodation for Hartnett. An examination of the chattel mortgage itself does not in express words disclose that Howard was acting as the agent of Hartnett. Larner on November 7, 1921, purchased the property here involved, purporting to be free from incumbrances and liens, from Hartnett and was in possession of same from that date and at the time it was sought to enforce the mortgage.
Controversy arises on this appeal as to whether plaintiff has not mistaken his remedy. It is insisted by respondent Larner that there are no adverse claims or titles to be determined and that the action should have been one for foreclosure of the chattel mortgage and therefore purely legal. Appellant, however, claims that under the circumstances of this case, with successive liens on the property and conflicting claims of title to it, it was proper that the mortgage should be foreclosed in a court of equity. We rule this point against respondent.
There is another question, however, which is decisive of the real question in the case as between plaintiff and defendant Larner. Defendant Larner insists that appellant's purported chattel mortgage signed by Norman B. Howard and filed with the Recorder of Deeds imparted no constructive notice to him. If this be true, plaintiff's case is taken up by the roots.
Our Supreme Court, in the case of New England Nat. Bank v Northwestern Bank, 171 Mo. 307, 71 S.W. 191, has...
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