Chandler v. West, 37 Mo. App. 631

Chandler v. West

37 Mo. App. 631 | Mo. Ct. App. | 1889

Smith, P. J.

The plaintiff brought suit against defendant in the circuit court of Audrain county for the wrongfully taking and converting to his own use “one white roan milch cow about six years old, three two-year-old steers, two two-year-old steers and one yearling steer,” whereby he was damaged in the sum of five hundred dollars. The answer denied generally the allegations of the plaintiff’s petition.

About the only questions presented by the record arise on the defendant’s demurrer to the plaintiff’s evidence.

The plaintiff, to maintain the issue, gave in evidence a mortgage executed to him by one Kessler on the eleventh day of April, 1888, on the following described personal property, to-wit, “ten head of cattle, mixed lot, cows, heifers and steers,” to secure the pay-men of a promissory note of even date with said mortgage made to him by said Kessler, and due six months after date. It was provided in the mortgage that the plaintiff should have the power to sell said property il Kessler made default in the payment of said note, oi *634should remove said property from the county of Audrain. It was stipulated in the mortgage that Kessler should remain in the possession of the property until default in the payment of the note.

The defendant, in July, 1888, sold the cattle described in plaintiff’s petition under a junior mortgage at which sale he became the purchaser. This suit was-brought in September, 1888. There was a verdict and judgment for plaintiff from which defendant appealed.

I. The main ground of the appeal is that as this-suit was brought by the plaintiff for the conversion of the cattle before the said Kessler had made default in the payment of the mortgage debt that the same cannot be maintained. We think this ground of contention is well founded. By the express terms of the mortgage Kessler, the mortgagor, was'to remain in possession of the property until he made default in the payment of' the debt, or until he removed the property out of said county, neither of which contingencies had happened when the suit was instituted. The possession at the time-of the alleged conversion by the defendant was in the-mortgagor under the letter of the mortgage itself.

The mortgagor then had the title to the property, and, having the possession, he had a vendible interest-therein, an interest which was subject to seizure and. sale under process, or under the defendant’s junior mortgage. If the plaintiff’s mortgage was a prior subsisting lien on the property, any such sale thereof would be subject to the plaintiff’s mortgage.

The sale of the equity of Kessler on the property by the defendant, under his junior mortgage and purchase’ by him, could have no other effect than to place defendant in the shoes of Kessler in respect to that equity. Lafayette Bank v. Metcalf, 29 Mo. App. 384; Bennett v. Timberlake, 57 Mo. 501; State ex rel. v. Carroll, 24 Mo. App. 361.

*635It certainly cannot be contended, that the act of the defendant or Kessler, as shown by the evidence, rendered the plaintiff ’ s debt due, or conferred upon him any power other than that provided in the mortgage. Until default by Kessler in the payment of the note or the removal of the property out of the county, he could not foreclose his mortgage, nor was he entitled to the possession thereof as against Kessler or his vendee. He could not maintain replevin or trover. Hickman v. Dill, 32 Mo. App. 509; Srebble v. Curdt, 56 Mo. 437. The suit of the plaintiff, being before default or conditions broken, was premature and unauthorized, and cannot bmaintained.

II. It is also objected that the description of the property contained in the plaintiff’s mortgage is so vague and uncertain as to be inoperative as to the cattle involved in this suit. The rule, deduced from the authorities here and elsewhere, is that when the recording of a mortgage, as under the statute takes the place of actual delivery of the mortgaged property, the mortgage, to be effectual, must point out the subject-matter of it so that a third person by its aid, together with the aid of such inquiries as the instrument itself suggests, may identify the property covered by it. The articles mortgaged must be of such nature and so situated as to be capable of being specifically designated and identified by the written description. Stonebraker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo. App. 204; Lafayette Bank v. Metcalf, 29 Mo. App. 394; Black v. Williams, 16 Pick. 35; Golden v. Cockerell, 1 Kansas, 259; Fowler v. Hunt, 44 Wis. 345; Winter v. Lamphere, 42 Iowa, 471; Jones on Chat. Mort. 55.

It cannot be pretended that the description in the mortgage in question meets the requirements of these rules, or that the property in the petition mentioned can be identified as being the same as that described in *636the mortgage. There is nothing in the mortgage to distinguish these “ten head of cattle, mixed lot, cows, heifers and steers,” from any other property of the same kind.

If the property alleged to have been wrongfully-converted is the same as that described in the mortgage, the mortgage does not prove it. This would have to be proved by parol testimony, and thus adding to the mortgage a term not contained in it, which is not permissible under the law in relation to mortgages.

It follows from what has been said that the judgment of the circuit court must be reversed, which-is ordered accordingly.

All concur.