State Bank v. Keeney

• Decision Date: 07 December 1908
• Parties: STATE BANK OF WEST UNION v. KEENEY et al.
• Court: Missouri Court of Appeals

114 S.W. 553

134 Mo. App. 74

STATE BANK OF WEST UNION v. KEENEY et al.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. ATTACHMENT (§ 288) — CLAIMS BY THIRD PERSONS—ESTABLISHMENT AND SUFFICIENCY.

An interpleader in attachment occupies the position of a plaintiff in replevin, and cannot recover unless he could have recovered in replevin in at the time he filed his interplea, and he must be entitled to possession of the property and recover on the strength of his own title and right of possession.

2. CHATTEL MORTGAGES (§ 162)—POSSESSION OF PROPERTY.

In the absence of fraud in the junior mortgage, its holder, after condition broken, is entitled to possession of the property as against the whole world, except the holder of the senior mortgage.

3. CHATTEL MORTGAGES (§ 162)—PRIORITY.

An attaching creditor of a chattel mortgagor stands in the shoes of the mortgagor, and cannot defeat a possessory action of a junior mortgagee by proof of a senior mortgage under which the attaching creditor does not claim.

4. CHATTEL MORTGAGES (§ 161)—POSSESSION OF PROPERTY.

Under a chattel mortgage providing that, if the mortgagor shall sell or attempt to sell the mortgaged property, it shall be lawful for the

mortgagee to take possession of the property, possession may be taken if a creditor of the mortgagor levies an attachment on the property.

5. CHATTEL MORTGAGES (§ 47)—CONSTRUCTION —PROPERTY MORTGAGED.

A chattel mortgage on hotel furniture contained a list of the articles mortgaged and stated they were located at the "Hotel Monte Cristo, North Main street, Excelsior Springs, Missouri." There was other personal property in the hotel at the time of the execution of the mortgage, but it was subsequently removed by the owner. Held, that the description of the property was sufficient as against an attaching creditor of the mortgagor.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by the State Bank of West Union against Luther Keeney and Matilda Keeney. Oscar P. Miller interpleads and appeals from an instructed verdict for plaintiff. Reversed and remanded.

Reinhardt & Schisby and Craven & Moore, for appellant. J. W. Porter, Martin E. Lawson, and Jas. T. Burney & Son, for respondent.

JOHNSON, J.

Plaintiff brought suit by attachment in the circuit court of Clay county, September 15, 1906, on a demand of $1,193.52, against Luther Keeney and his wife, Matilda Keeney, and on March 12, 1907, caused the writ to be levied on certain personal property in a hotel in Excelsior Springs. On June 10, 1907, Oscar P. Miller filed an interplea in the cause, in which he claimed to be the owner of a special interest in the attached property under a chattel mortgage executed by Matilda Keeney and her daughter, Gertrude, to secure the payment of their promissory note to interpleader of $550, dated September 14, 1906, and due on or before June 1, 1908. At the close of the evidence introduced at the trial of the issues raised by the interplea and plaintiff's answer thereto, the court peremptorily instructed the jury to return a verdict for plaintiff. This was done, and in due course of procedure the interpleader appealed.

The evidence of the interpleader discloses the following state of facts: Gertrude Keeney owned the furniture in use by her tenant in the operation of the Monte Cristo Hotel at Excelsior Springs. In August, 1906, she borrowed $350 of interpleader, and on September 14th, following, borrowed $200 more. At the time of the last loan, Gertrude and her mother, Matilda, joined in the execution of a promissory note to the interpleader for $550, the amount of the two loans. This note, dated September 14, 1906, was made payable on or before June 1, 1908, and bore interest from date at the rate of 6 per cent. per annum, payable semiannually. To secure its payment, Gertrude and her mother on the same day executed, acknowledged, and delivered to interpleader a chattel mortgage conveying to interpleader the hotel furniture we have mentioned. The instrument contained a list of the articles and stated they were located at the "Hotel Monte Cristo, North Main street, Excelsior Springs, Missouri." It also embodied the following condition: "But if the said Gertrude and Matilda Keeney shall default in the payment of said indebtedness or any part thereof, when the same shall become due and payable, or if they shall sell or attempt to sell, remove, or attempt to remove said property without grantee's consent out of Excelsior Springs, Missouri, at any time before said indebtedness is fully paid and discharged whether the same be due...