Swinney v. Merchant's Bank of Kansas City

• Decision Date: 02 June 1902
• Citation: 68 S.W. 960,95 Mo.App. 135
• Parties: E. F. SWINNEY, Plaintiff, v. MERCHANT'S BANK of Kansas City, Kansas, Appellant; WAKEFIELD STATE BANK of Morenci, Michigan, Respondent
• Court: Kansas Court of Appeals

68 S.W. 960

95 Mo.App. 135

E. F. SWINNEY, Plaintiff, v. MERCHANT'S BANK of Kansas City, Kansas, Appellant;

WAKEFIELD STATE BANK of Morenci, Michigan, Respondent

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Miller Buchan & Morris and Gage, Ladd & Small for appellant.

(1) The age of the cattle named in the mortgage is no material part of the description and should be rejected or disregarded, as an entirely erroneous addition to the part of the description which controls. It is merely an erroneous designation which does not impair the validity or lien of the mortgage. Jones on Chattel Mortgages (3 Ed.), par. 61; Barse Live Stock Com. Co. v. Turner, 56 Kas. 778, 44 P. 987; Peters v. Parsons, 18 Neb. 191; Bank v. Koechel, 8 S Dak. 391, 66 N.W. 933; Evans, Snyder Buel Co. v Turner, 143 Mo. 638; Estes v. Springer, 47 Mo.App. 99; Homes v. Com. Co., 81 Mo.App. 97; Harris v. Kennedy, 46 Wis. 500; Adamson v. Fagan, 44 Minn. 489; Hall v. Young, 87 N.C. 291; Harris v. Woodward, 96 N.C. 232; Norfolk Bank v. Wood, 33 Neb. 113; Wood v. Henry, 55 Mo. 560; Waggoner v. Oursler, 54 Kan. 141; King v. Aultman, 24 Kan. 246; Corbin v. Kincaid, 33 Kan. 649; Schmidt v. Bender, 39 Kan. 437; Scrafford v. Gibbon, 44 Kan. 533; Bank v. Shackelford, 67 Mo.App. 475; Campbell v. Allen, 38 Mo.App. 27; Bank Co. v. Com. Co., 80 Mo.App. 438; Yant v. Harvey, 55 Iowa 421; Smith & Co. v. McLean, 24 Iowa 322; Harris v. Kenneday, 48 Wis. 500; Talbert v. Horton, 33 Minn. 104; Baldwin v. Boyce, 152 Ind. 46; Kenyon v. Tramel, 71 Iowa 693; King v. Howell, 94 Iowa 208; Spalding v. Mozier, 57 Ill. 148; Love v. Putnam, 41 Neb. 86; King v. Aultman, 24 Kan. 246; Ballinger v. Bryan, 12 Tex. Civ. App. 673; Bank v. Bank, 84 Tex. 369; Estes v. Springer, 47 Mo.App. 99; Adamson v. Horton, 42 Minn. 161; Lightle v. Castleman, 52 Ark. 278; Harris v. Allen, 104 N.C. 87; Brown v. Holmes, 13 Kan. 482; Herman on Chat. Mort., 75; Jones on Chat. Mort., 65.

Elijah Robinson for respondent.

(1) The purpose of the law in requiring a mortgage to be recorded is to give notice to third persons of the existence of the lien created by the mortgage, and, as said by the Court of Appeals in Mayer v. Keath, 55 Mo.App. 161: "The mortgage on its face must give notice to third parties of the property conveyed, or else great fraud will be accomplished." Cattle Company v. Bilby, 37 Mo.App. 43; Mackey v. Jenkins, 62 Mo.App. 622; Furniture Company v. Davis, 76 Mo.App. 515; Hunter v. Arnett, 51 Ill. 198.

OPINION

SMITH, P. J.

--The plaintiff in his petition, which was in the nature of a bill of interpleader, alleged that he had in his possession and under his control a certain promissory note given to him by one Cantelow for $ 3,895.15, and that said note represented the proceeds of the sale of certain cattle sold to said Cantelow by the consent of both of the defendants; that prior to the sale of said cattle, each of said defendants claimed to have some sort of a lien thereon, and that each of them claimed the said proceeds of sale. The petition contained a further allegation offering to bring the said note into court, united with a prayer that each of the defendants be required to interplead setting up their respective rights and claims to said note, and that on bringing it (the note) into court, he be discharged. The order was subsequently made requiring the defendants to interplead. Still later on, each of the defendants filed their interpleas setting forth respectively their right, title and claim to the note. The proceeding, after the filing of the bill of interpleader, was very irregularly conducted, both as to the pleadings and orders of the court. The facts gleaned from the pleadings, stipulations and evidence may be summarized in this way:

1. On December 11, 1899, one Cy. Howenstine, a stockman of Custer county, in the Territory of Oklahoma, made to Ladd, Penny & Swasey of Kansas City, Live Stock Commission Merchants of said city, his negotiable promissory note for $ 7,857.59, due 123 days after date, to secure which he executed a certain mortgage of that date covering the following described personal property "now situate in Custer county, Oklahoma Territory, to-wit: 435 head of stock cattle coming three years old and upward, worth $ 10,500 now. For further and better description, said cattle are marked and branded with one or more of the marks and brands as follows, viz.: 412 coming three-year-old heifers and upward, 23 head of bulls, all branded ++ on left hip. Also 2,000 bushels of corn, 200 tons of kaffir corn and millet to be fed the above-mentioned cattle during the life of this instrument. All increase of said cattle are especially covered hereby. And are all the cattle of above brand and description owned by said party of the first part. The same being now located on farm of party of the first part, north and west of Arapahoe, Custer county, Oklahoma Territory. And being all the property of the above description owned or controlled by the mortgagor, now on said premises, and this mortgage is intended to cover and include all of said property of the above description and any addition and increase thereto, located on the above described premises, and range, if any thereabouts. The marks and brands used above to describe said property are the holding marks and brands and carry the title, although said property may have other marks and brands."

It is conceded that the interpleader, the Merchants Bank, was the owner of said note and had acquired the same for value before maturity.

2. On the tenth day of January, 1900, the said Howenstine made a further negotiable promissory note to said commission merchants, for $ 6,304, due August 6, 1900, to secure which he executed a certain mortgage of that date covering the following described personal property "now situate in Custer county, Oklahoma Territory, to-wit: 300 head of heifer cattle, coming two years old, described as follows: Value $ 6,900. All branded ++ on left hip. Also 1,500 bushels of corn; 200 tons of roughness, consisting of straw, millet and hay, to be fed to the above-mentioned cattle during the life of this instrument. All increase of said cattle are especially covered hereby. And are all the cattle of above description owned by said party of the first part. The same being now located on leased farm of party of first part near Arapahoe, Custer county, Oklahoma Territory. And being all the property of above description owned and controlled by the mortgagor now on said premises, and this mortgage is intended to cover and include all of said property of the above description and any addition and increase thereto, located on the above described premises, and range, if any, thereabouts. The marks and brands used above to describe said property are the holding marks and brands and carry the title, although said property may have other marks and brands."

It is further conceded that the Wakefield State Bank is the owner of said promissory note, and that it acquired the same for value before maturity.

3. It was agreed that the cattle sold to said Cantelow, and for which the $ 3,895.15 note in controversy was given to plaintiff Swinney, were, on December 11, 1899, and on January 10, 1900, the property of said Howenstine of Custer county, Oklahoma Territory; "that said cattle were, on both of the dates above mentioned, heifers over one and under two years old; that on the dates above mentioned, they were all of the shecattle owned by said Howenstine in the brand hereinafter described; that all of said heifer cattle owned by said Howenstine and sold to said Cantelow, as aforementioned, were branded on the left hip ++ at the dates above mentioned and were located in Custer county, Oklahoma Territory, and in possession of said Howenstine; and that the term, 'coming two years old' is understood by cattlemen throughout the country generally, to mean more than one and less than two years old, and the term, 'coming three years old' is understood by cattlemen throughout the country generally, to mean over two and under three years old. And it is further agreed by and between the said defendants that on the eleventh day of December, 1899, the cattle in controversy, that is, the cattle that were purchased by Mr. Cantelow, and for which the note in controversy was given, were located at the place described in the mortgage held by the defendant, the Merchants Bank, and that on the tenth day of January, 1900, said cattle were located at the place described in the mortgage held by the Wakefield State Bank; that on the eleventh day of December, 1899, said Howenstine did not own she-cattle branded ++ to exceed 412 head, and that he did not acquire any heifer-cattle of that brand between December 11, 1899, and January 10, 1900."

There was a trial by the court of the issue between the two contesting interpleaders, which resulted in a decree in favor of the interpleader, the Wakefield Bank. The unsuccessful interpleader, the Merchants Bank, brings the cause here by appeal.

I. It is thus made to appear from the stipulation that the cattle purchased by Mr. Cantelow, and for which he gave his note to plaintiff, were correctly described in...