Selking v. Hebel

• Decision Date: 28 February 1876
• Citation: 1 Mo.App. 340
• Parties: WILLIAM SELKING, Appellant, v. LOUIS HEBEL, Respondent.
• Court: Missouri Court of Appeals

1 Mo.App. 340

WILLIAM SELKING, Appellant,

v.LOUIS HEBEL, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1876.

1. In the absence of proof to the contrary, the laws of another State will be presumed to be the same as our own.

2. The record of an imperfectly acknowledged chattel mortgage imparts no notice.

3. The purchaser of a chattel from a mortgagor in possession will hold against a mortgage not sufficiently acknowledged, though it be copied and indexed in the office of the recorder of deeds, and though the purchaser have actual knowledge of its existence.

4. The value of a chattel in dispute being admitted by the pleadings, nothing appears to warrant an interference with the discretion of the trial court in refusing to allow an amendment in that particular at the close of plaintiff's case.

APPEAL from St. Louis Circuit Court.

Affirmed.

Finkelnburg & Rassieur, for appellant, cited: Story on Part. (6th ed.), sec. 94; Hill. on Mort. (4th ed.) 350, 351; Smith v. Hutching, 30 Mo. 380; Fairbanks v. Bloomfield, 5 Duer (N. Y.), 434, 440; Thornton v. Davenport, 2 Ill. 296; Edwards v. Harbens, 2 T. R. 587; Hathorn v. Lewis, 22 Ill. 395; Lewis v. Palmer, 28 N. Y. 272; Allen v. McCalla, 25 Iowa, 465; Schouler on Pers. Prop. (ed. 1873) 542; Ill. Stat. 1858, p. 873.

Hill & Bowman, Slayback & Haeussler, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This was an action of replevin brought by appellant against respondent for the possession of a large musical instrument called an “orchestrion.” The property was taken from defendant, under the statute, and delivered to appellant. Its value is stated in the petition and accompanying affidavit to have been $2,100.

It appears that plaintiff, residing in Indianapolis, Indiana, had the orchestrion in his possession on May 14, 1873, and at that date sold the same to Kestring & Kelly, a firm that had recently removed from Indianapolis to Quincy, Illinois, where they were carrying on business at the time of the sale. The sale was made with knowledge that the vendees would remove the orchestrion to their saloon in Quincy. It was sold for $2,100, of which $1,000 was paid in cash, and for the unpaid balance the notes of the purchasers were taken; one note at sixty days for $100, and five notes of $200 each, payable respectively in three, four, five, six, and seven months, secured by a chattel mortgage on the instrument. The mortgage stipulated that the mortgagor might retain possession until default, in which event the mortgagee might seize the mortgaged property, wherever found. The mortgage also provides that the mortgagee may at once take possession if the orchestrion is removed without his consent. The mortgage is under seal, and signed “Kestring & Kelly, by Edward Kelly,” who was one of the firm. There is attached to the mortgage a certificate of acknowledgment before a notary of Marion county, Indiana, the place in which it was executed, and in which the mortgagee resided, setting forth that, on the day named, “before me personally appeared the firm of Kestring & Kelly, by Edward Kelly, to me well known, and acknowledged the execution of the foregoing instrument as their free act and deed.” The orchestrion was at once delivered to Kestring & Kelly, in Quincy, and the mortgage at the same time recorded in the county in which Quincy is situated. None of the notes were paid, and the orchestrion was, in October, 1873, sold to defendant by Kestring & Kelly, and delivered by them to him at St. Louis, of which sale and removal plaintiff had no knowledge at the time. Defendant paid $1,000 for the instrument, but, on the trial, swears “it was worth just nothing; I would not have it back for anything.” Before purchasing, defendant sent a telegram to Indianapolis, to one Renman who kept a saloon next door to plaintiff, and whose address plaintiff got from Kestring & Kelly, asking, “How much claim do you hold on the orchestrion?” Plaintiff swears that this telegram was at once communicated to him, and that he immediately answered, both by telegraph and mail, to defendant's correct address in St. Louis, saying in his telegram that he had a mortgage for $1,100, and giving full particulars by letter. Defendant swears that he did...