Wrather v. Salyer

• Decision Date: 13 August 1925
• Docket Number: No. 3560.,3560.
• Citation: 274 S.W. 1106
• Parties: WRATHER v. SALYER.
• Court: Missouri Court of Appeals

274 S.W. 1106

WRATHER v. SALYER.

No. 3560.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Replevin by B. C. Wrather against Sam Salyer. From a judgment for plaintiff, defendant appeals. Affirmed.

S. J. Smalley, of Portageville, for appellant.

BRADLEY, J.

This cause is in replevin to recover a cow, and was tried before the court without a jury. The finding and judgment went for plaintiff, and defendant, after the usual steps, appealed.

The ownership of this cow was heretofore a question before us. See Wrather v. Lawson, 247 S. W. 473. Plaintiff in the present case was plaintiff in the attachment in the former case. As appears from the reported case, the judgment and opinion of which were introduced in the present case, plaintiff, Wrather, attached the cow as the property of D. Lawson, the husband. Mrs. Lillie Lawson, the wife of D. Lawson, filed an interplea in the attachment case, in which interplea she claimed to be the owner of the cow. That cause finally terminated in favor of the interpleader, Mrs. Lillie Lawson. After the final termination of that suit, and after the interpleader was adjudged to own the cow, plaintiff purchased said cow from Mrs. Lillie Lawson, the interpleader, making the purchase from her agent. Such is the history of plaintiff's claim of title.

Defendant's defense is that the cow is the property of his wife, and not the property of plaintiff. Mrs. Salyer's claim of ownership is as follows: Prior to the attachment in Wrather v. Lawson, supra, D. Lawson had given a mortgage on this cow to McElvain & Highfill. When the cow was attached and under the writ issued in Wrather v. Lawson, she was turned over to plaintiff, Wrather. In a few days thereafter McElvain & Highfill brought replevin in a justice of the peace court under their mortgage, and against plaintiff, for the possession of said cow. Plaintiff did not contest that cause, and it went to final judgment in favor of McElvain & Highfill. Thereafter the cow was sold under the mortgage, and at the sale McElvain was the purchaser. On the same day, and immediately after the sale, McElvain sold the cow to Mrs. Mollie Salyer, the wife of the defendant in the cause at bar. The price paid by Mrs. Salyer was $100.

A plaintiff in replevin must recover on the strength of his own title, and not on the weakness of the defendant's, and if defendant could show that his wife owned the cow plaintiff could not recover. Jackson v. City of Columbia (Mo. App.) 217 S. W. 869. It is urged that plaintiff ought not now to be permitted to question the title derived from the McElvain & Highfill mortgage, because he was a party to that cause in replevin based on the mortgage, and judgment went against him and became final. The only interest concerning the cow that plaintiff had at the time of the replevin proceedings was by virtue of his attachment, and the fact that the cow had been turned over to him by the deputy sheriff. The mortgage was prior to his attachment, and was given by D. Lawson, who was defendant in the attachment proceedings. Furthermore, the title which plaintiff now claims under was acquired long after the replevin suit of McElvain & Highfill, and is in no manner connected with that suit, and that suit is no barrier in any sense to plaintiff's cause at bar.

It is further contended that plaintiff ought not to prevail in the cause at bar because he tried out the claim of Mrs. Lillie Lawson on her interplea in Wrather v. Lawson without interposing the McElvain & Highfill title or claim to defeat the interplea. There is no merit in this contention. As stated, plaintiff's present title or claim was acquired long after the McElvain & Highfill case in the justice of the peace court. He purchased from Mrs. Lillie Lawson, who was adjudged to be the owner of the cow in the trial of the interplea in Wrather v. Lawson, supra. Plaintiff stands exactly like any other person would stand who might have purchased the cow from Mrs. Lawson after the termination of the litigation in Wrather v. Lawson. The fact that he was the attachment plaintiff in Wrather v. Lawson is of no consequence in the present cause. It is true that McElvain & Highfill were not bound by the judgment on the interplea in Wrather v. Lawson. They were not a party to that cause. Mrs. Salyer's title depended on the ownership of D. Lawson when he gave McElvain & Highfill the mortgage. That was the decisive question before the court in the trial of the cause at bar, and was decided against the claim of Mrs. Salyer.

The court refused certain declarations requested...