White v. Meiderhoff
| Decision Date | 02 March 1926 |
| Citation | 281 S.W. 101,220 Mo.App. 171 |
| Parties | D. H. WHITE, ET AL., RESPONDENT, v. ANTON MEIDERHOFF, DEFENDANT, SIKESTON MERCANTILE COMPANY, INTERPLEADER, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Gresham & Montgomery and Bailey & Bailey, of Sikeston, for appellant.
(1) A chattel mortgage to be effective must merely point out the subject-matter of it so that a third person by its aid together with the aid of such inquiries as the instrument itself suggests, may identify the property conveyed. Stonebraker v. Ford, 81 Mo. 532; Dierling v Pettitt, 140 Mo.App. 88; Evans-Snyder Buell Co. v Turner, 143 Mo. 638; City National Bank v. Goodlow, 93 Mo.App. 123, 129; Banking Co. v. Com. Co., 80 Mo.App. 438, 441-2. (2) On trial of interplea in an attachment suit the sole issue is whether interpleader is the owner of the property attached or if he has the right to the immediate possession of the property, and no value should be assessed even though the property has been sold by order of the court. Citizens Trust Co. v. Elders, 259 S.W. 136; Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 632; Hardware Co. v. Randol, 69 Mo.App. 342; Wrather v. Lawson, 247 S.W. 473.
Ward, Reeves & Oliver, of Caruthersville, for respondent.
The mortgage does not sufficiently describe the crop attempted to be conveyed. Klebba v. Missouri Mershum Company, 257 S.W. 174; Lafayette County Bank v. Medcalf, 29 Mo.App. 285; Estes v. Springer, 47 Mo.App. 99, 104; Stonebraker v. Ford, 71 Mo. 532.
Plaintiff brought suit by attachment against defendant Anton Meiderhoff. A writ of attachment was issued under which the Sheriff of Scott County levied upon and seized 150 acres of wheat in the shock belonging to defendant. Thereafter, before the return day of said writ, the Sikeston Mercantile Company, hereinafter called the interpleader, filed its interplea in said cause, claiming title to the property attached under and by virtue of a chattel mortgage given it by defendant Anton Meiderhoff. Upon the issues made by the interplea trial was had during the November Term, 1922, of the circuit court of Scott county. At the close of interpleader's testimony the trial court gave a peremptory instruction, pursuant to which the jury found the issues for plaintiff and judgment was entered accordingly. For some reason, not appearing from the record, the court did not pass upon interpleader's motion for new trial until the November Term, 1924, after which interpleader perfected its appeal to this court.
The only question involved in this law-suit is whether or not the chattel mortgage under which interpleader claims was void as to plaintiff, the attaching creditor, on account of indefiniteness and uncertainty in the description of the personal property in controversy. The chattel mortgage in question is in conventional form and was duly placed of record the day following its execution. The description of the property in the mortgage is as follows:
The foregoing description would unquestionably be sufficiently definite and certain were it not for the fact that the mortgagor, defendant herein, had a one-half interest in more than 100 acres of growing wheat on the premises described in the mortgage. The evidence shows defendant had one hundred and fifty acres of wheat on the C. F. McMullin farm where he lived. On this point, Meiderhoff, the mortgagor, testified on cross-examination that there were 235 acres in the McMullin place; that he had one hundred and fifty acres, more or less, of wheat; that it was not all in one field; different fields. On re-direct examination he said:
Charlie McMullin, the owner of the land on which the wheat in controversy was grown testified that He was then asked if he could take this mortgage and tell which part of the land was the one hundred acres of wheat. He replied that he could because the road divided the 50 acres and the 100 acres. He thereafter, admitted that: "Perhaps I would have located it from facts I had outside of this mortgage and not the mortgage itself." The testimony of this witness as to whether he could locate the wheat from the description in the mortgage was only a matter of his opinion. As evidence, it was of doubtful value or propriety. This evidence was not conclusive on either party. The real question as to the sufficiency of the description in a chattel mortgage is whether or not a third person, by its aid, together with such inquiries as the instrument itself suggests, might identify the particular property conveyed, and therefore, a question for the jury to determine. [Stonebraker v. Ford, 81 Mo. 532; Jennings v. Sparkman, 39 Mo.App. 663; Estes v. Springer 47 Mo.App. 99; Banking Co. v. Commission Co., 80 Mo.App. 438.]
The rule is...
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