Sexton v. Monks

• Decision Date: 31 March 1852
• Citation: 16 Mo. 156
• Parties: SEXTON, Respondent, v. MONKS, Appellant.
• Court: Missouri Supreme Court

16 Mo. 156

SEXTON, Respondent,

v.MONKS, Appellant.

Supreme Court of Missouri.

March Term, 1852.

1. The 13th section of the 7th article of the new Code, requiring either party relying upon a record, deed, or other writing, to file the original, or a copy, with his plea, is only applicable to cases in which the party recites his title in his pleading as existing by written conveyances; or to a case in which the record, or writing, is recited in the pleading as confirming or barring a right.

2. The interest of a mortgagor, or pledgor, of personal property in the hands of the mortgagee, or pledgee, is not subject to sale under execution.

Appeal from St. Louis Court of Common Pleas.

Sexton sued Monks under the new Code, alleging in his petition that on the 7th of February, 1849, the defendant, without leave, and wrongfully, took the following property of the plaintiff, and has not returned the same, viz: “One roan mare of the value of $75, and one chestnut sorrel mare of the value of $75, by which plaintiff says he is damaged to the amount of $200, for which he asks judgment.”

The defendant in his answer denies that he took the property of the plaintiff, or wrongfully detained the same, or that the plaintiff has sustained any damage by any act of the defendant. The defendant refers to judgments obtained by him before Justice Kitzmiller, on the 4th of November, 1848, in his favor, against D. F. White. Execution issued thereon on the 13th of November, 1848, under which the mares were sold as White's to satisfy said execution, and makes said proceedings a part of his answer.

On the trial, February 27th, 1851, the plaintiff offered proof tending to show that he was in the possession of the mares sued for in the fall of 1848, and that he received them from one D. F. White, and having proved said White's signature to the following paper, offered it in evidence:

“ST. LOUIS, October 25th, 1848.

I have this day received of Patrick Sexton (a colored man), $50, and have delivered him a roan horse and a sorrel mare, which he is to use and feed for two months; at the expiration of two months he may return the two horses and the harness I have loaned him, and I am to pay him back the $50, or he may keep the horses and pay me $50 more, at his option.

Given under my hand this day and year written.

D. F. WHITE.”

The defendant objected to the admission of this paper, for the reason that it was not referred to in the petition, and that there was no notice to the defendant of its being filed in the case as a part of plaintiff's cause of action. The court overruled the objection, allowed it to be read, and defendant excepted.

The plaintiff offered proof showing that there was a mistake in the writing, in calling one of the animals a horse; that the animals intended were both mares.

The plaintiff then offered a transcript of proceedings before John W. Colvin, a justice of St. Louis township, in a suit in favor of Jno. Smith v. D. F. White, the defendant, and Patrick Sexton, garnishee.

The defendant objected to these papers, because they were not filed with the petition, and no notice given to the defendant of their being filed February 4th, 1851. The court admitted them, and defendant excepted.

The transcript showed that John Smith commenced suit by attachment against D. F. White on the 15th day of December, 1848, and that on the same day Patrick Sexton, the plaintiff, was summoned as garnishee; that on the 3d day of January, 1849, Sexton answered as garnishee, admitting that when he was summoned as garnishee he had a sorrel and roan mare belonging to White in his possession, which he held under the writing dated 25th day of October, 1848, above copied, but that the two months, mentioned in the writing, having elapsed, and White not having demanded the two mares, he considered that he owed White $50.

On the 2d of February, 1849, judgment was rendered against Sexton, as garnishee, on his answer, and on the 8th day of February, 1849, execution issued on this judgment against him, which was afterwards entered “satisfied.”

The defendant then introduced a transcript from Justice Kitzmiller, a justice in St. Louis township, showing, that on the 4th day of November, 1848, the defendant in this action, J. A. Monks, obtained judgment against D. F. White for $100 and costs, and that on the 13th of November, 1848, an execution issued on said judgment, to the constable of St. Louis township, which was received by the constable the same day, and that under this execution the constable levied on the two mares, as the property of D. F. White, on the 24th of January, 1849, in St. Louis township, and sold them to satisfy said execution, on the 7th day of February, 1849, for $69.

The court gave the following instructions to the jury:

1. The contract read in evidence, dated October 25th, 1848, passed the title to the property, on the delivery of the same, to Sexton. If the jury believe that the property in question belonged to White on the 25th of October, 1848, and that he executed the contract of that date, on payment to him of $50, and delivered the property to Sexton, and that the property continued in the possession of said Sexton, and was not returned by Sexton to White, and that after the expiration of the two months from the date of the contract, and before the actual levy of execution in the suit of Monks v. White, said Sexton was summoned as garnishee in an attachment suit against White, and judgment was rendered against him as said garnishee, then the jury will find for the plaintiff.

2. To entitle the plaintiff to recover in this case he must prove, to the satisfaction of the jury, that the defendant took the property in question, or that it was taken by the defendant's orders or directions and detained from the plaintiff. If the constable took and retained the property, or refused to deliver it to the plaintiff on demand of the plaintiff, and thus acted under the directions of the defendant, the defendant is liable for all the damages sustained by the plaintiff, for the taking or detention of said property.

3. The instrument dated October 25th, 1848, if signed by White, and if the property named in said instrument was White's at that date, and the same was delivered to Sexton under that instrument, passed the title to the property, and the same became the property of Sexton,...