196 Mo. App. 411 | Mo. Ct. App. | 1917
On March 22, 1915, Dr. Samuel Armstrong was the owner of a certain horse which is the subject of this litigation, and on that day two attachment suits were filed against him and the constable on the same day seized said horse under said writs of attachment and placed the horse in a livery or feed stable owned by one Mathews. The constable continued to board said horse at Mathew’s stable until the 1st day of April, 1915, when Mathews transferred the stable to defendant Carr, and on said day the constable arranged with said Carr to feed and care for the horse. On the 3rd day of April, 1915, trial was had of both of said attachment suits, resulting in a judgment .against defendant in each case, and the constable continued in possession of said-horse by virtue of said writs of at
About the 20th day of. August, 1915, when the mortgage given by Dr. Armstrong to Birmingham had matured and Birmingham after a diligent search was unable to find Dr. Armstrong to collect the money owing to the former, ■ he told young Lafe Armstrong that he wanted either the horse- or the money and was informed by said Armstrong that the horse was at Carr’s barn, whereupon Birmingham went to Carr’s barn and demanded the horse under his mortgage. Carr refused to deliver the horse, claiming that he had
The court instructed the jury that while the horse was in the custody of the constable from April 1, 1915, to April 13, 1915, that no lien accrued to the defendant for the keep of said horse during said period of time. Appellant claims that the court erred in so instructing the jury.
Unlike an artisan’s common law lien an agister’s lien, being of statutory creation and in derogation of the common law, must be strictly construed, and it has been often held that unlike an artisan’s lien the lien of a mortgagee is superior to that of the agister if such lien was created prior to the placing of the horse with the agister, and if the holder of the mortgage has not in any way waived his right of priority. [Miller v. Crabbe, 66 Mo. App. 660; Lazarus v. Moran, 64 Mo. App. 239; Harding & Co. v. Kelso, 91 Mo. App. 607; Zartman-Thalman Carriage Co. v. Reid & Lowe, 99 Mo. App. 415.] And it is also held that an agister who takes care of a horse under a contract with a bailee of the horse, and whom he knows to be in charge of the animal as bailee, is bound to know the extent of the authority of such bailee and he has no agister’s lien as against the bailor. [Sherwood v. Neal, 41 Mo. App. 416.]
However, the constable placed the horse in question in defendant’s barn on April 1, 1915, to be fed, and Birmingham knew this when he took his mortgage on April 13, 1915, so that if the constable was able to create an agister’s lien in favor of the livery stable man, such lien had priority over the lien of the mortgagee. However, it is strenuously insisted by the plaintiff that a constable could not create an agister’s lien against the animal in the manner it is claimed it was created. Respondent cites no authorities to substantiate this claim but argues from the fact that the statute- allows the constable compensation for the care and keep of animals in his custody under an attach-
It is the constable’s duty under the law to take proper care of the animal and if he fails to use ordinary care so to do he is liable. [Murfree on Sheriffs, sec. 261a; Harlow’s Sheriffs and Constables (2 Ed.), sec. 256.] But it is not to be assumed that he will not place it in the custody of someone engaged in caring for like animals.
The attached property being in custodia legis, the power of the constable in respect to it is not different from that of a receiver who has taken property into his possession under the order of court appointing him. As to a receiver’s power to create liens it was said in Vette v. Leonori, 42 Mo. App. l. c. 225:
“It is said in Kneeland v. American Loan and Trust Co., 136 U. S. 89, that a court which appoints a receiver acquires, by virtue of that appointment, pertain rights and assumes certain obligations, and that the expenses, which the court creates in discharge of those obligations, are necessarily burdens on the property taken possession of, and this irrespective of the question, who may be the ultimate owner, or who may have the preferred lien, or who may invoke the receivership.” [See, also, Case Plow Works v. Union Iron Works, 56 Mo. App. 1.]
The fact that the constable conld have had the feed bill charged as costs in the case would not prevenían agister from securing his lien against the horse, as the agister should not be put to the hazard of a constable failing to see that the agister’s bill was properly charged as costs and that the same was paid. The facts in this case show that the constable did not see that such bill was paid. The statute gives the agister a lien upon the horse for his feed and makes no exception in the attaching, of this lien in cases where the feed might be paid by some other means.
However, if the horse being in custodia legis is-placed in a livery barn and while so being is sold, the purchaser would take it, no doubt, discharged of the agister’s lien; but the lien would, we think, be valid against the proceeds arising from the sale of the horse in the custody of the court, just as the sale of goods in the custody of the court is discharged of the lien of the warehouseman in whose place the goods have been stored by the constable (see Case Plow Works v. Union Iron Works, supra), but whether this be so or not, no such question arises here, because the horse was released from the custody of the law without sale, so that the only question really after all is whether the- constable had the power to place the horse in the stable, which, as we have held, he did. We- are, therefore, of the opinion that the defendant had a lien upon the horse from April 1, 1915, to April 13, 1915, and the court erred in instructing the jury otherwise.
Appellant urges that he had a lien after April 13, 1915, because he claims that plaintiff as a matter of law waived his prior lien as mortgagee. The evidence shows that the mortgage was made several hours before Dr. Armstrong and his son made the new contract with defendant for the keep of the horse after the settlement of the attachment suits. The defendant, having made'a new contract with the owner of the horse
There is no evidence that plaintiff knew or understood that Dr. Armstrong intended keeping the horse in defendant’s barn. The defendant claims that as a matter of law plaintiff waived his lien in favor of the agister for the reason that plaintiff knew that the horse was in defendant’s barn at the time he had the telephone conversation with the defendant and knew that it had been there and had been fed by the defendant for sometime prior to the day of said conversation.
We do not think that these facts show as a matter of law that plaintiff waived his prior lien. While plaintiff might have known that the horse was being boarded by defendant under an arrangement with the constable, it cannot be presumed from these facts alone that Dr. Armstrong intended to board the horse with defendant, but, on the other hand, it was but natural that Dr. Arm
The court properly submitted all these facts to the jury and left it to them to decide whether plaintiff had waived his prior lien, and as we cannot say as a matter of law that plaintiff did waive it-, the finding of the jury on the question is conclusive.
It appears that the chattel mortgage from Dr. Armstrong to plaintiff was not recorded until the day after it was executed and, consequently, after the new contract between Dr. Armstrong and his son and defendant for the keep of the horse, made after the settlement of the attachment suits. The mortgage only became a lien on the horse, as to third parties, from the date that it was filed for record. [Sec. 2861, R. S. 1909; Stone v. Kelley and Son, 59 Mo. App. l. c. 217, 218.] Therefore, defendant’s lien created by the new contract with Dr. Armstrong and the latter’s son and defendant for the keep of the horse created a prior lien to that of plaintiff’s unless plaintiff recorded his mortgage within a reasonable time. [Bryson and Hardin v. Penix, 18 Mo. 13; Way v. Braley, 44 Mo. App. 457.] As the town of Bland, where the mortgage was executed, is several miles from the county seat of Gasconade County, the question of whether plaintiff recorded his mortgage within a reasonable time, no doubt, will be thrashed out in the trial anew.
The judgment is reversed and the. cause remanded.