Western Realty Co. v. Musser

• Citation: 97 Mo. App. 114,71 S.W. 100
• Court: Court of Appeal of Missouri (US)
• Decision Date: 01 December 1902
• Parties: WESTERN REALTY CO. v. MUSSER et al.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 100

97 Mo. App. 114

WESTERN REALTY CO. v. MUSSER et al.^*

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

REPLEVIN — OWNERSHIP — EVIDENCE — OVERDUE CHATTEL MORTGAGE — RIGHT OF MORTGAGEE — ESTOPPEL — PLEADING.

1. Evidence in an action of replevin held to show that plaintiff, as buyer of the property from a purchaser through an agent from a mortgagee, was the owner thereof, as against one claiming as mortgagee in a mortgage executed by such agent while in possession for his principal.

2. Since a mortgagee in a past-due chattel mortgage may maintain replevin for the mortgaged property, he may take possession thereof and sell the same without foreclosure proceedings.

3. A defense that a principal is estopped to deny title to personalty acquired from his agent must be pleaded.

Appeal from circuit court, Clinton county; A. D. Burnes, Judge.

Action by the Western Realty Company against Guy L. Musser and another. From a judgment for plaintiff, defendants appeal. Affirmed.

W. S. Herndon and E. J. Smith, for appellants. Jay L. Carlisle and F. B. Ellis, for respondent.

ELLISON, J.

This is an action of replevin for a newspaper plant, consisting of a printing press and other items of property connected therewith. The judgment in the trial court was for plaintiff. The plaintiff and defendants claim under chattel mortgages given on the property. Plaintiff's claim rests on a prior mortgage given by Burnham & Updyke to Ross. Defendants' claim rests on a subsequent mortgage given by Green to defendants' intestate. The facts appear substantially as follows: Ross owned the paper, and sold it to Burnham & Updyke, who executed to Ross three notes, — one, first due, for $400, and two others for $500 each, — and a chattel mortgage on the property to secure them. Ross assigned these notes to Gage as collateral for borrowed money. Burnham & Updyke failed to pay the note first due, and Ross, through his agent, Smith, took possession under his mortgage; and, becoming dissatisfied with Smith, he put William Henry in charge. Henry, as agent for Ross, then sold the property to Green, as agent for Miss Shinn. Henry took the purchase money, and paid Ross' debt to Gage, and received from the latter the Burnham & Updyke notes, which he held as collateral for Ross' debt. Henry then delivered them over to Green, who indorsed them to Miss Shinn, for whom he had purchased the property. Green leased the newspaper for a time from Miss Shinn, when he quit, and turned the keys to the building over to her, and, as stated by witnesses, left the country. She rented a building from defendants' intestate, Musser, in which the property was kept, and afterwards sold it to this plaintiff. As tending to prove acts of ownership by Green, it was shown that he was in possession and published the paper, and that he gave a mortgage to Musser, defendants' intestate; that he brought a replevin suit for possession against Smith, and purchased some printing material. It was furthermore offered to show that he published in the paper that he had bought it. This was excluded, but in considering the case we will assume that it was admitted.

Many points are presented in support of the appeal, including several objections to the instructions given for plaintiff. But as we regard evidence which prominently appears in the cause, and which is uncontradicted, as determining the case in plaintiff's favor, the judgment could not have been otherwise than it is, and we need not enter into a discussion of such points.

Ross is the source of the title through which each of the parties to the controversy claims. Neither side disputes his title. Plaintiff claims that Miss Shinn bought of Ross through her agent, Green, and that she then sold to plaintiff; and that is what we have just stated the facts to be. But defendant claims that Green bought of Ross for himself, and that he was not Miss Shinn's agent, and that he then mortgaged the property to defendant's testator. So, then, casting aside all question about...