Seymore v. Dabbs
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 493,170 Mo.App. 151 |
| Parties | J. J. SEYMORE and D. H. CROWELL, Respondents, v. W. C. DABBS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley Circuit Court.--Hon. J. C. Sheppard, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Charles B. Butler and David W. Hill for appellant.
(1) Plaintiffs claim the right to the possession of the mules in suit by virtue of a second chattel mortgage, which was given to them to secure the payment of a note executed to G. A Sheppard, payee. That note was executed by Rook, as principal, and by plaintiffs as sureties. It was not paid off by a renewal note, but was paid off with money borrowed on a new note, a new contract. The new note was executed by Rook as principal and plaintiffs as sureties, to the Ripley County Bank, payee. It certainly cannot be called a renewal of the Sheppard note, because a renewal note is from the same parties to the same parties. It is true that this note was executed by the same parties, but to a different payee and we take the position that this was a new and entirely different contract from the note that was given to G. A. Sheppard. This new note is not expressly or impliedly within the terms of the second chattel mortgage, the contract upon which plaintiffs rely. The court will bear in mind that this second chattel mortgage does not provide for renewal notes. No evidence was introduced to show that this second chattel mortgage was to cover the note executed to the Ripley County Bank or any renewal thereof and such evidence would have been incompetent, as attempting to vary, contradict and enlarge a written instrument, to-wit, the second chattel mortgage, and such testimony would have been improper to bind the rights of an innocent third party, such as the defendant in this case. Caldwell v. Sisson, 150 Mo.App. 547.
No brief for respondents.
--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:
Immediately following this on the page of the index appear these entries:
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 Seymore executed a new note to the bank (on August 4, 1910) for $ 187 and took up the $ 185 note, and the bank having marked it paid gave it to Rook, who, in turn, gave it to defendant. There were one or two other renewals made subsequently in the same way, and each time the old note would be marked paid by...
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