State To Use Mayer v. O'Neill
| Decision Date | 26 June 1899 |
| Citation | 52 S.W. 240,151 Mo. 67 |
| Parties | State to use Mayer, Appellant, v. O'Neill et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Botsford Deatherage & Young for appellant.
(1) Defendants having wholly failed to make any proof that any of the attachment plaintiffs were creditors of Chas. Johns, and there being nothing in the record to show that Chas. Johns ever became or was indebted to any of said attaching plaintiffs, it results that neither said attaching plaintiffs nor said defendants claiming under them have any right to question the good faith of the chattel mortgage from defendant to plaintiff. (Clark v. Laird, 60 Mo.App 289.) It follows that for this reason, and aside from all the other points we contend for, the court below erred in peremptorily instructing the jury to return a verdict for the defendants, and also erred in not giving the instructions prayed for by plaintiff, numbered 1, 2 and 3. State ex rel. v. Rucker, 19 Mo.App. 592; Shoe Co. v Bain, 46 Mo.App. 582. (2) The mortgage of Chas. Johns to the Union National Bank, if valid at all, was only valid to the extent of the goods covered by that mortgage at the time that mortgage was made. The language of the description did not include any part of the stock of goods owned by Johns in No. 538 Main street, which last stock of goods, three months thereafter, he moved into No. 536, and consolidated it with the Deemer stock, nor did it include any of the goods added by purchase by Johns to the consolidated stock. Fleming v. Graham, 34 Mo.App. 160; Cobbey on Ch. Mort., sec. 356; Mackey v. Jenkins, 62 Mo.App. 621. (3) The language of the mortgage from Chas. Johns to the plaintiff, wherein the mortgage from Johns to the bank is recited, is as follows: "All subject however, to the rights of the Union National Bank of Kansas City, Mo., as its mortgage interest may appear under a chattel mortgage heretofore executed by me to said Union National Bank for the purpose of securing a note for $ 3,500." The plaintiff by that recital only became bound so far as the bank was concerned "as its mortgage interest may appear." In other words, if the mortgage to the bank was valid then the plaintiff by that recital became bound by that mortgage to the bank to the extent that it covered the mortgaged property. She was not prevented by the recital in her mortgage from showing or maintaining that the mortgage to the bank was invalid. Brooks v. Owens, 112 Mo. 251. (4) The bank, after possession was taken by the plaintiff, was suffered by the plaintiff to go in possession under its, the bank's mortgage, but that possession by the bank was taken without the knowledge or consent of Chas. Johns. If Johns had turned over possession to the bank while he was still in possession, then the bank would have acquired, by virtue of that delivery of possession alone and irrespective of the mortgage, an interest in the mortgaged goods by way of pledge or payment of its debt. There is nothing however in the record to show that Johns' consented to or was in anywise a party to the delivery of possession to the bank under its mortgage, and this being so, that possession obtained by it without Johns' consent, gave the bank no interest under its void mortgage. Stephens v. Perrine, 143 N.Y. 476. (5) The proof in this case on the part of the plaintiff, of the mortgage to her, that she was put in possession of the mortgaged property; that defendants thereafter took possession of the same under writs of attachment, and the proof of the value of the property, made out a case for the plaintiff entitling her to recover. Janssen v. Stone, 60 Mo.App. 402.
Lathrop, Morrow, Fox & Moore, Alexander New, Henry Wollman, Haff & Van Valkenburgh, J. W. Garner, M. R. Downs and L. A. Laughlin for respondents.
The mortgage given by Johns to the appellant, Mayer, and the subsequent acts of her agent, Young, operated, and were intended to operate to hinder and delay the creditors of said Johns in the collection of their claims. The said Young, as agent of the mortgagee Mayer, was fully cognizant of the fraud which tainted the mortgage to the Union National Bank, when he undertook to preserve the bank's security to the bank and place it beyond the reach of other creditors. These facts were clear, and the testimony establishing them uncontradicted and incontrovertible, and their effect was so certain that there was nothing for the trial court to do but to peremptorily instruct the jury to find for the defendants. This is the law, as declared in the case of Williams v. Kirk, 68 Mo.App. 547, in an admirable opinion, citing the case of Barton v. Sitlington, 128 Mo. 164. See, also, Perrine v. Bank, 55 N. J. L. 402; Seger v. Thomas, 107 Mo. 635; Bauer Grocer Co. v. Smith, 61 Mo.App. 665; McDonald v. Hoover, 142 Mo. 484.
Botsford, Deatherage & Young for appellant in reply.
(1) The fact that the mortgage to the bank was void down to the time of making the mortgage to plaintiff did not disable Johns from giving a new mortgage to the bank at the same time of giving the mortgage to plaintiff, or from stipulating, as he did in the mortgage to plaintiff, for payment thereunder of the bank's mortgage debt. Greely v. Reading, 74 Mo. 309; Petring v. Chrisler, 90 Mo. 649; Dobyns v. Meyer, 95 Mo. 132. (2) Equally untenable is the contention of respondents' attorneys that the mortgage to plaintiff is rendered void by the written agreement made by plaintiff and the bank dated January 29, 1894. Said agreement was made after those levies to adjust the priorities and settle all questions between the plaintiff and the bank as to the division of the proceeds to which they should be held entitled from the mortgaged property.
Action on sheriff's bond against the sheriff and his sureties, for the alleged wrongful seizure by the sheriff, O'Neill, under seven writs of attachment levied on certain personal property which Augusta Mayer claimed as hers by virtue of a certain chattel mortgage executed to her by one Johns on the 9th day of January, 1894. The validity of this mortgage is questioned by this litigation.
At the conclusion of the evidence the court gave a peremptory instruction to find for defendants, and plaintiff took a nonsuit with leave, etc., and having moved, and the motion being denied, excepted and appealed to this court.
Attention will now be directed to the salient features of this cause in order to determine whether the mortgage made by Charles Johns to his sister Augusta Mayer, was valid or not, because upon its validity rests the validity of the peremptory instruction aforesaid.
Intimately associated, however, with the Mayer mortgage is the prior one made to the Union National Bank of Kansas City, by Johns, and to which reference is made in the former but subsequent mortgage. The mortgage to Mrs. Mayer was given on the entire stock of shoes and fixtures at 536 Main street, Kansas City, Mo., as security for the sum of $ 4,270, supposed to be evidenced by six promissory notes which are as follows:
Due Mrs. Augusta Mayer five hundred dollars which is invested in the Little Venture Cattle Co., or due on demand with 60 days notice at 8 per cent from date. Two hundred dollars recd. in 1881 and three hundred dollars in 1883, total as the above stated $ 500. If left in the Little Venture Cattle Co. for investment she will receive her dividends as soon as any are made pr. ratio or draw her capital out as stated before in this. Chas. Johns.
'A' Kansas City, Mo., July 13, 1885.
'B' Kansas City, Mo., Nov. 30, 1886.
Due Augusta Mayer three hundred and fifty dollars with interest at the rate of 8 per cent pr. annum till paid.
$ 549.10 Chas. Johns.
'C'
$ 375.00 Kansas City, Mo., Aug. 12, 1887.
....After date I promise to pay to the order of Augusta Mayer three hundred seventy-five dollars. For value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 8 per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest.
$ 717.56 Chas. Johns.
'D'
$ 525 Kansas City, Mo., Nov. 9, 1888.
....After date I promise to pay to the order of Augusta Mayer six hundred twenty-five dollars. Interest of 8 per cent pr. annum. Value received.
Due $ 990 Chas. Johns.
'E'
$ 750 Kansas City, Mo., January 3d, 1890.
One year after date I promise to pay to the order of Augusta Mayer seven hundred fifty dollars. Interest of 8 per cent pr. annum. Value received.
Due $ 990 Chas. Johns.
B. Glick bookseller and stationer, 535 Main St. Kansas City.
'F'
$ 290 Kansas City, Mo., October 16th, 1891.
One year after date I promise to pay the order of Augustus Mayer two hundred and ninety dollars. For value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 8 per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest.
Due 343.85. Chas. Johns.
No payment had ever been made on these notes, and it was not until December 23d, 1893, that any attempt was made to collect the indebtedness represented by the notes. Then J. L. Young was written to by Mrs. Mayer and the notes inclosed to him for collection. Mrs. Mayer as well as Young and Johns had formerly lived in Decatur, Iowa, about 1866 or '67, but he had held no correspondence with her since 1870, until the letter aforesaid reached him at Garden Grove, Iowa, 185 miles from Kansas City. Young, however, was well acquainted with Johns, used to visit him at Kansas City and had been his counsel in active litigation for three years. They were on intimate terms.
The...
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