Yeldell v. Stemmons

• Decision Date: 31 January 1852
• Citation: 15 Mo. 443
• Parties: YELDELL & BARNES v. STEMMONS.
• Court: Missouri Supreme Court

15 Mo. 443

YELDELL & BARNES

v.STEMMONS.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM BOONE CIRCUIT COURT.

LEONARD, for Appellants. 1. Mortgaged personal property, in possession of the mortgagor, even after the mortgage has become absolute, may be sold under execution against the mortgagor; and in a contest between him and the execution purchaser, he is estopped from setting up the mortgage to defeat the execution sale. Stone v. Laughlin, 5 Mo. R. 43; Meeker v. Wilson, 1 Gallis. R. 424, 425; Klein v. Graham, 3 Caine's R. 188; Stone v. Scott, 18 Johns. R. 96; Jackson v. Parker, 9 Cowen, 80; McGregor v. Darling & Hall, 3 Stew. & Port. 397. This last case is referred to in Perkins v. Elliott, 5 Porter, 189. 2. If the execution sale was void for want of a vendible interest in the mortgagor, then for the same reason he cannot recover damages for its detention.

HAYDEN, on same side. 1. The property levied upon and sold to the plaintiffs, was subject to the levy and sale, under the circumstances of this case, and the plaintiffs, by their purchase, acquired such a title thereto, as against Stemmons, as to enable them to maintain their present action against him. 1 Gallis. R. 11, 19, 424, 425; 5 Ala. R. 664, 742, 743, 785; 3 Stew. & Port. 397; 5 Stew. & Port. 192; 5 Porter, 182; 4 Ala. R. 402; 5 Mo. R. 43; 18 Johns. R. 96; 9 Cowen, 80; 3 Caine's R. 188. 2. As the property was subject to sale under the executions, the plaintiffs became entitled to the possession thereof, and the defendant was estopped to deny it; and therefore the Circuit Court, upon the trial of the cause, erred in permitting the defendant to give evidence conducing to show that he had previously mortgaged the same to others, who never had had the possession thereof, and who did not, in this action, interpose their claim against the plaintiffs' right of recovery.

CLARK, for Respondent. 1. A mortgagee of persona, property, is from and after the execution and delivery and record of the mortgage, the legal owner, and the mortgagor retains no interest in it except by agreement to that effect. Jamison v. Brine, 6 Gill & Johns. 72; 4 Randolph, 248; 3 Fairfield, 282; 8 Johns. 97; 4 Blackf. 425; 1 Pick. 399; 8 Va. R. 434; 1 Peters, 441; 13 Peters, 294; 4 Kent's Com. 153; 1 Tucker's Com. 109; 1 McCord's Ch. R. 486. 2. If the defendant, Stemmons, had any interest in the ferry-boat and slaves, it was only an equitable interest, and such an one as was not subject to sale under execution. This point has been forcibly ruled for the appellee by this court in the case of King v. Bailey, 8 Mo. R. 332; see also, 8 East, 467; 1 Pick. 399; Hardin's (Ky.) R. 19; Freemon's Ch. R. 729; 4 Smedes & Marsh. 153, 161; 8 Johns. 96; 7 Cowen, 290; 1 Vesey, 435; 2 Tucker, 361; 9 Wend. 258; 1 Comstock, 295; 3 Wend. 500; 8 Wend. 347; 4 Cowen, 461; 3 P. Williams, 341; 2 Atkyns, 290. 3. The bare possession of the property by Stemmons, the mortgagor, after the execution and delivery of the mortgage deed furnishes no presumption of a license to hold it. Day's Digest Conn. R. 326, § 77. 4. The Circuit Court did right in giving the third instruction asked by the defendant. The rule of law, governing the action of replevin, is that if the plaintiff fails to prosecute his suit with effect, he must return the property and pay such damages as will be equal to the value of the use of the property. Digest 1845, p. 922, title Replevin; 13 Mo. R. 28, Reed v. Wilson & Gamer. 5. The defendant, Stemmons, was not estopped from showing that the plaintiffs purchased no title to the property in question at the sheriff's sale. 4 J. J. Marsh. 588-9; Major v. Deer. 2 Penn. R. 798 (reported in 2 U. S. Dig. p. 138, § 470, title Ejectment).

SCOTT, J.

This was an action of replevin, begun by the appellants against the appellee for three slaves and a ferry-boat, purchased by the appellants at a sale under an execution against the appellee. The interest of the appellee in the slaves and boat was purchased by the appellants, who were not the plaintiffs in execution under which the sale took place, for the sum of two dollars. The appellee was mortgagor in possession of the property in controversy at the time of sale, and his equity of redemption was foreclosed during the pendency of this suit. The appellants having failed in their action, damages was assessed against them to the amount of five hundred and twenty-four dollars. After judgment, they appealed to this court.

The only questions that have been raised upon the record, are whether the appellants can maintain this action, and whether the appellee, Stemmons, being the defendant in execution, is not estopped from setting up the defense that he had no vendible interest in the property in controversy, or at least none such as was subject to sale under an execution.

It was a principle of the common law, steadily maintained, that an equitable interest in chattels could not be sold under execution. A sheriff must actually seize the property on a fieri facias before he can sell. This was a requirement of the common law, and it has been sanctioned by our statute. ^(a) The great sacrifice resulting from sale of the such interests, has caused their prohibition. The interest of the debtor may be great or small, and as it is uncertain what will be realized by the purchase, there is almost invariably a ruinous sale.^(b) This very case demonstrates the impolicy of such transactions. Here is a sale of an interest in property for two dollars, and that property not having been delivered by the sheriff, has given rise to...