137 Mo. App. 526 | Mo. Ct. App. | 1909
— Action instituted before a justice of the peace for the sum of $125 alleged to be the value of a mare, which was the property of plaintiff and was unlawfully converted by defendant to his own use. The animal was an iron-gray mare, three years old, which had belonged previously to Garrett Delaney. Said owner had executed a chattel mortgage on her to plaintiff, dated July 1, 1905, to secure a note of the same date for $191.90. The mortgage also embraced other property, and never was recorded. Delaney and his wife had lived on a farm in Lincoln county, but after the execution of the mortgage he got into some trouble with the public authorities, the nature of which is not .revealed, and left the country. Before this occurred his wife had gone to St. Louis, but she returned to the farm after her husband absconded. Plaintiff went there to get the mare under the mortgage and found Mrs. Delaney in possession. She was using the animal in the cultivation of her crops, and plaintiff, agreed to leave the mare for that use on the understanding Mrs. Delaney would later turn over to plaintiff the crop and some cattle of her own in payment of the note her husband owed, as far as the value of the properties would go. There were some other terms in this agreement not necessary to be stated. Mrs. Delaney did not comply with the agreement and when the crop matured plaintiff took possession of the mare with Mrs. Delaney’s consent, or rather she sent the mare to plaintiff; but the animal escaped from his pasture after a few days and went back to the Delaney farm. In October, 1906, Mrs. Delaney proposed to sell her to defendant John Washington for $75. Washington had heard about the chattel mortgage held by plaintiff and would not buy until Mrs. Delaney procured a certificate from the recorder of deeds of the county that
1. For aught that appears in the record Delaney was the owner of the mare when he gave the mortgage to plaintiff, and there was nothing in proof which tends to show Mrs. Delaney owned any interest in the animal at any time. Counsel for defendant rely mainly on plaintiff’s omission to file his mortgage for record, contending that being unrecorded and unaccompanied by delivery of the mare, it was invalid as against all persons except plaintiff and Delaney. They cite in support of this proposition the statute which says no mortgage or deed of trust of personal property shall be valid against any other person than the parties to it, unless possession of the mortgaged property is delivered to and retained by the mortgagee or trustee or cestui que trust, or unless the mortgage or deed of trust be acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, etc. [R. S. 1899, sec. 3404.]
2. An estoppel is invoked against plaintiff on the score that his laches in omitting to record his mortgage or take possession of the property, enabled defendant to be imposed on regarding the title. There is no semblance of merit in this contention, for defendant was notified in writing of plaintiff’s interest before a dollar had been paid by him (defendant) on the price of the mare.
3. A further contention is that as Delaney had absconded his wife might claim the animal exempt from execution under the provisions of sections 3159 and 3164. Those statutes have no reference to a case of mortgaged property and do not undertake to exempt
The judgment is reversed and the cause remanded.