Seymore v. Dabbs

• Decision Date: 07 April 1913
• Citation: 155 S.W. 493,170 Mo. 151
• Parties: SEYMORE et al. v. DABBS.
• Court: Missouri Court of Appeals

155 S.W. 493

170 Mo. 151

SEYMORE et al. v. DABBS.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. CHATTEL MORTGAGES (§ 150) — RECORDING — OBLIGATION OF MORTGAGEE.

A mortgagee in a chattel mortgage, valid on its face, need only file it with the recorder, and he is not responsible for the mistakes of the recorder in making entries thereof in the file book and index.

2. PRINCIPAL AND SURETY (§ 175) — INDEMNITY — DEBTS SECURED — RENEWAL NOTES.

A chattel mortgage given by the mortgagor to secure sureties on his note remains a lien securing the sureties signing renewal notes, if so intended by the parties, provided rights of innocent third persons are not infringed thereby.

3. PRINCIPAL AND SURETY (§ 175) — INDEMNITY — DEBTS SECURED — RENEWAL NOTES.

Where a mortgagor in a chattel mortgage, given to secure sureties on his note, sold the mortgaged chattels to a third person after the mortgage was duly filed, a subsequent renewal note, given by the mortgagor and the sureties to a different payee and for a different amount, was not secured by the mortgage.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by J. J. Seymore and another against W. C. Dabbs. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Charles B. Butler, of Doniphan, and David W. Hill, of Poplar Bluff, for appellant.

FARRINGTON, J.

This was a suit in replevin and is here on the defendant's appeal. It appears that the plaintiffs instituted the action before a justice of the peace of Ripley county to replevin from the defendant two mules, basing their claim on a chattel mortgage dated February 8, 1910, on the two mules and a wagon and set of harness, securing a note for $185, which mortgage was filed in the recorder's office on the day of its execution. Counsel for appellant have in their abstract a small photograph of the page of the index of chattel mortgages filed with the recorder of Ripley county, and have had prepared from this photograph a blue print with the entries concerning this case much enlarged, and they are as follows: "No. 3082. Grantor, W. E. Rook. Grantee, B. H. Crowell et al. Time of filing, Feb. 3, 1910. Description of property, black mare mule, 8 yr. old, 15 H. H. Sorrel horse mule, 8 yr. old, 15 H. H. Amount of debt, $135.00. Satisfaction, satisfied, W. C. Dabbs. Date of satisfaction, Aug. 12, 1910." Immediately following this on the page of the index appear these entries: "No. 3090, Grantor, `Do.' Grantee, `Do.' Time of filing, Feb. 8, 1910. Description of property, Black mule, 15 H. H., 8 yr. old. Sorrel mule, 15 H. H., 8 yr. old — wagon & harness. Amount of debt, $185.00. Satisfaction, `Withdrawn and recorded.' Date of satisfaction, July 29, 1911."

W. E. Rook sold the mules to the defendant, W. C. Dabbs, in April or May, 1910. The uncontroverted testimony is that the defendant had no actual knowledge of any mortgage whatever on them when he purchased them, and, if he cannot be held to be an innocent purchaser, it is because of the notice which the records of the county would impart.

It appears that, in indexing the second mortgage, the words "withdrawn and recorded" are placed under the printed heading "satisfaction," and that the date when it was "withdrawn and recorded," namely, July 29, 1911, is placed under the printed heading "date of satisfaction." It will be observed that this was over a year from the time defendant purchased the mules. It also appears on the mortgage, but not on the county records, that this mortgage was canceled February 12, 1910. The evidence shows that Rook made the first note, of $135, to the Ripley County Bank, and that B. H. Crowell, Ed Ferguson, W. H. Stone, and Grant Wilson signed this note as sureties, and that the first mortgage on the mules was given to the sureties for their protection. Afterwards Rook executed a note to G. A. Sheppard for $185, which B. H. Crowell and J. J. Seymore (the plaintiffs herein) signed as sureties, and, in order to secure them for signing, Rook gave them a second mortgage on the mules. Both of the mortgages were filed with the recorder, as has been shown. When Dabbs, the defendant herein, bought the mules from Rook, it is uncontroverted that he did not know of either of the mortgages, but that Rook at the time told him there was $135 against the mules at the Ripley County Bank, which he would have to take up. Defendant paid $200 for the two mules in the following manner: $135 to the Ripley County Bank to take up the $135 note, which, unknown to him, was secured by a first mortgage to the sureties on the note; delivery of a cow by defendant to Rook valued at $35; and $30 paid in money to Rook. Defendant kept the mules from April or May, 1910, until September 5, 1911, when this suit was brought to recover them under the second mortgage which had been given to secure the note for $185 payable to G. A. Sheppard. Sheppard had transferred the $185 note to the Ripley County Bank, and when it became due, Rook, Crowell, and...