Stonebraker v. Ford

• Decision Date: 30 April 1884
• Citation: 81 Mo. 532
• Parties: STONEBRAKER et al. v. FORD et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

81 Mo. 532

STONEBRAKER et al.

v.FORD et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1884.

Error to Louisiana Common Pleas Court.--HON. G. PORTER, Judge.

REVERSED.

W. H. Biggs for plaintiffs in error.

The court committed error in permitting the defendants in error to read the chattel mortgage in evidence. 1st. Because the description of the debt attempted to be secured by the mortgage was too vague and indefinite. Rood v. Welch, 28 Conn. 157, and authorities cited. 2d. Because the description of the property attempted to be transferred by the mortgage is so vague, indefinite and uncertain as to render the instrument void. Golden v. Cockrell, 1 Kas. 259; Richardson v. Alpina Lumber Co., 40 Mich. 203; Crosswell v. Allis, 25 Conn. 301; Bullock v. Williams, 16 Pick (Mass.) 33; Kelley v. Reid, 57 Miss.; Fowler v. Hunt, 48 Wis. 345; Jones Chat. Mort., § 56; Herman Chat. Mort., §§ 38, 42. 3d. Because the evidence of defendants in error shows that the mortgage was in point of fact given to secure the defendants in error as endorsers for John E. Stonebraker to one William C. Prewitt. The testimony of Alfred and John E. Stonebraker shows that plaintiffs in error did not sign the Prewitt note. 4th. Because the defendants failed to show by their testimony that the property involved was a portion of the identical property described in the mortgage. 5th. The chattel mortgage was void as to the cattle and sheep, because John E. Stonebraker testified that at the time the mortgage was given he had forty-five or forty-six head of cattle on his farm in Pike county, and that he also had thirty-three head of imported Cotswold sheep on his farm. John E. Stonebraker by the mortgage attempts to sell or transfer to the mortgagees “forty head of cattle of different ages, sizes, etc., and twenty head of imported Cotswold sheep then on his farm in Pike county, Missouri.” There is no pretense that forty head of cattle and twenty head of imported Cotswold sheep were separated from the other cattle and sheep at the time the mortgage was given, nor is there anything in the testimony tending to prove which forty head of cattle out of the lot of forty-six, or which twenty head of imported Cotswold sheep out of the lot of thirty-three head were intended to be conveyed or transferred to the defendants in error by the mortgage. Blakely v. Patrick, 67 N. C. 40; 12 Am. R. 600; Waldo v. Belcher, 11 Ired. (N. C.) 609; Jones v. Morris, 7 Ired. (N. C.) 370; White v. Wilks, 5 Taunton 176. The court should have given instruction No. 1 asked by plaintiffs in error. Authorities last cited. Instruction No. 2, asked by plaintiffs and refused by the court, should have been given. Burgert v. Borchert, 59 Mo. 80.

Champ Clark for defendant in error.

(1) The law, as applicable to the case, was properly declared in the instructions given for the defendants in error. Durkee v. Chambers, 57 Mo. 575; Kuykendall v. McDonald, 15 Mo. 416, 420; Shelly v. Boothe, 73 Mo. 74; Henderson v. Henderson, 55 Mo. 534. (2) The mortgage was not void for uncertainty. The degree of accuracy or particularity with which property may be described depends upon its nature. In this mortgage the horses, mules, farming implements and machinery were described so that any man might recognize them. Likewise the cattle. And the only manner possible in describing Cotswold sheep is to say “so many Cotswold Sheep.” And the testimony shows conclusively that the officer who served the process had no trouble in identifying the mortgaged property as described in the mortgage. See Conkling v. Shelly, 28 N. Y. 360; Gardner v. McEwen, 19 N. Y. 123; Hermann on Chattel Mortgages, 73, 75. (3) The fact that the mortgageor remained in possession was no evidence of fraud. (4) The plaintiffs in error signally failed in their attempt to show that the mortgageor had sold or attempted to sell any of the mortgaged property until the institution of this suit. And even if he had sold the property, there is nothing in the testimony or circumstances to show that the mortgagees knew of it; and therefore the mortgage could not have been affected thereby. Howell v. Bell, 29 Mo. 135; Wag. St. § 8, p. 281; Mertzner v. Graham, 57 Mo. 404.

PHILIPS, C.

This is a controversy between the mortagees and an execution creditor of John E. Stonebraker touching the right to certain personal property of said debtor. In September, 1878, said John E. Stonebraker executed to A. and O. Stonebraker, his uncles, a chattel mortgage on certain personal property then on the farm of the mortgageor in Pike county. On judgment obtained by the defendant, Jacoby, the defendant Ford, as sheriff of said county, levied execution on the part of the mortgaged property to satisfy the same. Thereupon the plaintiffs brought this action in replevin and took possession of the property so seized by the sheriff. After a second trial before a jury, the plaintiffs recovered judgment. From this judgment the defendants have brought the case here on writ of error. Since the case came to this court the defendant, Ford, has died, and the cause has been revived, as to him, in the name of J. Gabriel Phillips, as his executor.

I. The first question presented by this record is, whether this action was not prematurely brought. To maintain the action the plaintiffs must show title, or a right to the present possession of the property which is the subject of the action. Melton v. McDonald, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95; Blakeley v. Patrick, 67 N. C. 42. To determine this matter recourse must be had to the mortgage. It recites the following condition and provision:

“Upon condition that if he pay to said Alfred and Oliver Stonebraker, their executors, administrators and assigns $5,000 and interest, according to his contract, the same being made to secure the said Alfred and Oliver Stonebraker against loss on account of their having become surety for him on certain notes, then this conveyance shall be void, otherwise to remain in full force and effect. And in case default be made in the payment of the debt above mentioned, or any part thereof, or of the interest due thereon on any day when the same ought to be paid, then the whole sum shall at the election of said Alfred and Oliver Stonebraker become immediately due and payable. The property hereby sold and conveyed to remain in his possession until default be made in payment of the said debt and interest, or some part thereof, but in case of a sale or disposal or attempt to sell or dispose of said property, or a removal of or attempt to remove the same from said farm without the consent of the said Alfred and Oliver Stonebraker, or an unreasonable depreciation in value thereof, the said Alfred and Oliver Stonebraker or their legal representatives may take the said property or any part thereof into their possession.”

The proper construction of this language is that the mortgage was given to indemnify the mortgagees against loss as sureties of the mortgagor. Without some express contract authorizing it, the sureties would, ordinarily, have no cause of action against their principal until they had paid the debt of the principal. The express declaration of the mortgage is, that it was “made to secure the said Alfred and Oliver Stonebraker against loss on account of their having become surety for him on certain notes,” and to be void if he shall save them harmless. This is the predicate or governing clause. To preserve the force and consistency of this declared object, the unavoidable construction of the succeeding provisions is, that the “default in the payment of the debt above mentioned, or any part thereof, or of the interest due thereon” refers solely to the default of the mortgageor in protecting the mortgagees against “loss on account of their having become sureties for him.” Then follows the stipulation, that “the property hereby sold and conveyed to remain in his (the mortgageor's) possession until default be made in payment of the said debt and interest, or some part thereof.” The default manifestly refers to the mortgageor's failure to repay the sureties what they may lose by reason of their suretyship. Therefore, the mortgagees were not, by the terms of the mortgage entitled to...