Turner v. Langdon

• Decision Date: 30 April 1885
• Parties: TURNER et al., Appellants, v. LANGDON.
• Court: Missouri Supreme Court

85 Mo. 438

TURNER et al., Appellants,

v.LANGDON.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, JUDGE.

REVERSED.

Thomas & James for appellants.

(1) The description of the property in the chattel mortgage is sufficient. Jones v. Richardson, 10 Metcalf (Mass.) 481; Hardin v. Coburn, 12 Metcalf (Mass.) 333; Jones on Chattel Mortgage, sec. 65. (2) A mortgagee of personal property, after default, is regarded as the absolute owner. 4 Kent 138; Williams v. Rover, 7 Mo. 556; Robertson v. Campbell, 8 Mo. 365; Id. 615. (3) A mortgagee of personal property may recover the possession thereof by replevin. Lacy v. Gibbony, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Williamson v. Gottschalk, 1 Mo. App. 425; Keck v. Fisher, 58 Mo. 532. (4) If the defendant claimed the property under an execution by virtue of being deputy constable, it devolved upon him to show: first, a valid judgment, and, second, a regular execution, and this could only be done by putting in evidence the judgment and execution. 2 Greenleaf on Evidence, sec. 629; Lee v. Lee, 21 Mo. 534; Ramsey v. Waters, 1 Mo. 406; Morrison v. Dent, 1 Mo. 246; Wright v. Crockett, 7 Mo. 128. (5) If the defendant had shown a valid judgment and execution, and that he was deputy constable, still the action was properly brought against him. Criley et al. v. Vasel, 52 Mo. 445-449. (6) The instruction asked by defendant should not have been given, if by giving to the testimony every reasonable intendment in plaintiffs' favor, drawing every conclusion from it, favorable to the plaintiffs, that a jury might justifiably have drawn, and conceding to it the greatest probative force to which, according to the law of evidence, it is entitled, it will warrant a verdict in their favor. Parks v. Ross, 11 Howard (U. S.) 373; Pauling v. United States, 4 Cranch 219; Pleasants v. Fant, 22 Wallace, 116; Finney v. N. P. Ry. Co., Sup. Ct. Dakota, June 16, 1883; 16 N. W. Rep. 500; 17 Cent. Law Journal, 240; Kelly v. Han. & St. Joe Ry. Co., 70 Mo. 608; Charging the Jury, by Thompson, page 38, and authorities there cited. (7) The property actually taken by the sheriff under writ in this case from defendant is shown, by the evidence of Adams, to be the property described in the petition; the defendant, in fixing the value of the property, the possession of which he claimed, fixed the value of the goods in the store on the nineteenth day of April, 1881, thereby admitting that they were the goods taken from him by the sheriff under the writ in this case

BLACK, J.

The plaintiffs, Turner, Frazer, Parry and West, partners under the firm name of Turner, Frazer & Co., and Douglass and Wiehl, partners under the firm name of R. Douglass & Co., commenced this suit in replevin on the thirtieth of April, 1881, to recover certain personal property. The defendant answered that he was the legal owner of the property, and prayed judgment for a return thereof. The evidence shows that Richey was in possession of the property, and on the nineteenth of April, 1881, made a mortgage on the property to plaintiff to secure two debts, one due to each of said firms. The mortgage was recorded on the twenty-second of April, 1881, at half past five o'clock, p. m. Both debts were due when this suit was commenced.

Mr. Adams testified that on the twenty-second of April he inquired at the recorder's office and found no mortgage of record. He then had the defendant, as deputy constable, to levy on the goods. He says he returned to the recorder's office on the same day, and found the mortgage recorded. There was evidence of the value of the goods. On this evidence the court directed a verdict for the defendant. The respondent has filed no abstract or brief, and hence his position with respect to this appeal is left to conjecture.

The chattel mortgage is not fraudulent on its face, and there was no sufficient evidence to direct a verdict on the ground of fraud. Proof of the possession of the property by Richey, and the recorded mortgage from him to the plaintiffs, and proof of the maturity of the debt, made a prima facie case for the plaintiffs. Mr. Adams, the witness, does not show, affirmatively, that the execution was levied before the mortgage was recorded. The execution was not read in evidence, nor does the record show when or by whom it was issued. The triers of fact might infer that the execution was levied before the mortgage was recorded, but this did not justify the court in assuming that to be the fact. This court has said where a “material fact is left in doubt, or there were inferences to be drawn from facts proved, the case, under proper instructions, should be submitted to the jury.” Kelly v. Ry. Co., 70 Mo. 604-608.

The judgment is reversed and the cause remanded.

Norton and Sherwood, JJ., dissent. The other judges concur.

SHERWOOD, J., DISSENTING.

In actions like the present one, the onus probandi is on the plaintiff, to establish the allegations of the petition, that at the time of the caption he had a general or special property in the goods taken, and the right of immediate and exclusive possession. 2 Greenleaf on Evidence, sec. 561; Cross v. Hulett, 53 Mo. 397. The issues on these points were fairly raised by the answer denying the allegations of the petition and alleging title in the defendant, and that he was also entitled to the possession of the property. And where the issue is on the plaintiff's property his right to the possession at the time of taking is also involved in the issue. 2 Greenleaf on Evidence,...