Williamson v. Gottschalk

• Decision Date: 07 March 1876
• Citation: Williamson v. Gottschalk, 1 Mo. App. 425 (Mo. App. 1876)
• Parties: ANTHONY C. WILLIAMSON, Respondent, v. EDWARD L. GOTTSCHALK, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 425

ANTHONY C. WILLIAMSON, Respondent,

v.EDWARD L. GOTTSCHALK, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1876.

A mortgagee of personal property, having brought an action of replevin against a second mortgagee who was in possession, the defendant brought into court the money due on the first mortgage and tendered it to the plaintiff. He did not plead his second mortgage, but relied on his possession and this tender. The plaintiff replied that since the commencement of the suit he had sold the property, under his first mortgage, to a third person. Held, 1. That the first mortgagee (plaintiff) was justified in replevying the property. 2. Upon the payment or tender of the debt, to secure which the mortgage was given, he was compellable to give up the property. 3. If before such tender he had, under the terms of the mortgage, sold the property, he will be excused for refusing the tender and failing to give up the property, but the burden of showing that he has so sold it lies on him, and, in the absence of all evidence on this subject, the court must presume that no such sale was made.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Gottschalk, for appellant, cited: 1 Hill. on Mort. (4th ed.) 323, sec. 2; Dixon on Subrogation, 20; Mullanphy v. Simpson, 3 Mo. 492 (Houck ed. 262); Wolf v. Watter, 56 Mo. 292; Schouler on Pers. Prop. 558; Powers v. Powers, 11 Vt. 262; 2 Perry on Trusts (2d ed.), 176, sec. 602; Davis v. Warfield, 38 Ind. 461; Gibson v. Mosier, 9 Mo. 257 (Houck ed. 154); Smith's Ld. Cas. (Hane & Wall. ed.) 274, 216; 2 Greenl. on Ev., title Tender, secs. 569, 600; Eslow v. Mitchel, 26 Mich. 500; Adams v. Helm, 55 Mo. 468; Wag. Stat. 1026, sec. 14; Beale v. Dale, 25 Mo. 301; White v. Van Houton, 51 Mo. 557.

Bell & Thompson, for respondent, cited: Pemie v. Poulson, 53 Mo. 310; Wolf v. Walters, 56 Mo. 292; 1 Tidd's Pr. 643.

GANTT, P. J., delivered the opinion of the court.

Williamson, the holder of the first deed of trust on certain chattels, sued Gottschalk, who had possession of them, in replevin. Prior to the commencement of the suit, Gottschalk offered to pay to Williamson the balance due on the note secured by his deed. Williamson was willing to accept this money and release the deed of trust, but Gottschalk seems to have wished to keep the incumbrance alive. On this point the negotiations fell through; Williamson sued to replevin, and Gottschalk, not setting up that he was the holder of a second deed of trust, pleaded that he had tendered to Williamson the balance due under the first, before suit, and brought the money into court, offering to Williamson's acceptance. The plaintiff denied the tender, and alleged that, since the commencement of the suit, he had disposed of the property under the first deed of trust, and that one Bishop had become the purchaser.

It appeared in evidence that the first deed of trust was executed by George S. Schwartz, dated November 1, 1871; the second on December 28, 1872. Only $58.65 was due under the first incumbrance when this suit was commenced. The defendant, it will be seen, did not set up his second deed, but relied on his possession and the tender of the amount due under the first. Each deed was duly acknowledged and promptly recorded. Plaintiff gave in evidence the deed dated November 1, 1871. A. R. Neal, for plaintiff, testified that he saw W. B. Thompson purchase the note secured by the first deed of trust, on which there was a balance due of $57 or $58, by paying that sum therefor. That witness purchased the property in July, 1872, from Jacob K. Schwartz; that George Schwartz was then in possession of it.

Defendant offered in evidence a bill of sale from George S. to Jacob K. Schwartz. The court, on plaintiff's objection, excluded this instrument, and defendant excepted.

Defendant then asked leave to amend his answer so as to show that he claimed as second incumbrancer. The court refused leave, and defendant excepted. Defendant then offered the deed from Jacob K. Schwartz to George S. Schwartz, dated December 28, 1872. The court excluded this paper, and defendant excepted. Plaintiff admitted that the balance due on the note secured by the first deed had been paid into court by defendant.

The court instructed the jury as follows, defendant excepting:

1. “If the jury believe from the evidence that the plaintiff was the trustee of a deed of trust executed by George S. Schwartz, dated November 1, 1871, and that said deed of trust was unpaid and unsatisfied at the commencement of this suit, and that the property described in said deed of trust was the same property in possession of defendant, and was of the value of $300, then they will find for the plaintiff.”

2. “The jury are instructed that, upon the issues joined in this case, the only question to be determined between plaintiff and defendant is whether the note and deed of trust executed to plaintiff, dated November 1, 1871, conveyed the personal property described in the petition, and that the same was of the value of $300, and was in possession of the defendant at the commencement of this suit and the service of the writ of replevin, and at the time of the service of the writ of replevin in this action the note and deed of trust were paid and satisfied; and if they find from the evidence that the personal property described in the petition was in the possession of defendant, and was the same described in said deed of trust, and was of the value of $300, and that said note was not paid or satisfied at the time of the service of the writ of replevin and of the filing of this suit, then they will find a verdict for the plaintiff.”

Defendant asked the following instructions, which the court refused, defendant excepting:

1. “The court instructs the jury that plaintiff, under his deed of trust, was only entitled to the possession of the property, herein sued for, for the purpose of securing to him the payment of the sum remaining unpaid; and if the jury find from the evidence that such sum was either paid to him or tendered to him by the defendant, and that defendant had at that time a right to the property, or was in possession thereof, then said tender extinguished the right of possession as against the defendant, and the jury will find...