17 Mo. App. 577 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This was in the nature of an action of trover, commenced before a justice of the peace, to recover damages for the conversion of a chattel. The plaintiff was the mortgageor of a chattel, in possession thereof with the consent of the mortgagee, though after condition broken. The defendant, a stranger to the mortgage, seized upon and converted the chattel, and the plaintiff brought this action for damages. The court nonsuited the plaintiff.
The only question for decision is whether the mortgageor of a chattel, after condition broken, but before the mortgagee has taken or demanded possession, may maintain an action for damages against a stranger to the mortgage, for its conversion. The learned judge of the cir-
Undoubtedly the title to a mortgaged chattel, after condition broken, passes to the mortgagee, so that he can maintain replevin for the same, as against the mortgageor or any other person. — Lacy v. Giboney, 36 Mo. 320; Bowens v. Benson, 57 Mo. 26; McCandless v. Moore, 50 Mo. 511. But it does not follow from this that if the mortgagee chooses to allow the mortgageor to remain in possession, the latter does not retain such a special property in the chattel as will enable him to maintain an action in the nature of trover against a third person who has wrongfully converted it. It is elementary knowledge that such an action could be maintained at common law. Indeed, the rightful possession of a chattel was sufficient at common law to enable the possessor to maintain trover in respect of it, against any one except the rightful owner. This has not been doubted since the leading case of Armory v. Delamirie (1 Str. 504; S. C. 1 Sm. L. C. 374), where it was ruled that the finder of a jewel might maintain trover for a conversion thereof by a wrong-doer. This doctrine has been either ruled or recognized in several cases by our supreme court, both before and since the code.— Vanzant v. Hunter, 1 Mo. 71; Turley v. Tucker, 6 Mo, 583; Parker v. Rodes, 79 Mo. 88, 91. “Trover,” said Nap-ton, J., “ may be maintained for taking goods wherever trespass will lie.” — Ireland v. Horseman, 65 Mo. 511, 513. “Possession,” said Bake well, J., “ is sufficient to enable the possessor to maintain trespass. Proof of actual possession by the plaintiff at the time of the trespass, in all cases suffices to maintain the action against a mere wrong-doer — a naked possessor who shows no title.” — Hickey v. Hazard, 3 Mo. App. 480, 486.
It was the intention of the above named section of our practice act to prevent the prosecution of actions by,. or
Applying these principles to the case before us, it cannot be doubted that the mortgageor of a chattel, after •condition broken, stands toward the mortgagee in the at
Whether, then, the mortgageor is regarded in respect of his special property in the chattel and his right to the-possession thereof as against all persons save the mortgagee ; or whether he is regarded as the trustee of an express trust in respect of the chattel, for the mortgagee ; it clearly appears that he may maintain an action for damages for its conversion against any other person than the mortgagee.
The judgment of the circuit court is accordingly reversed and the cause remanded.