109 Mo. App. 84 | Mo. Ct. App. | 1904
This is an action of replevin for certain personal property. The plaintiff claims the property by reason of a mortgage executed by a corporation known as the Williams Wagon Company to secure the payment of a note for $3,500, which represents the amount of the different advancements of money made to said company of which plaintiff was a
Under the facts the court directed the jury to return a verdict for defendants.
No question is raised as to the validity of the mortgage, but it is contended by the defendants that, when the receiver makes his report of sale plaintiffs will have the right to go before the court and claim enough of the proceeds of the sale to pay his mortgage. The trouble about this contention is that there was testimony to the effect that defendant bought the property subject to the mortgages; or, in other words, with the agreement between himself and the receiver that he would pay the mortgage debt and that plaintiff would then cancel the mortgage. If such was the fact, the plaintiff would have no claim upon the proceeds of the property in the hands of the receiver.
Had defendants bought the property without res
Defendants have moved to dismiss plaintiffs’ appeal because they have not filed a proper and sufficient abstract under the law and the rules of the court. But as plaintiffs have supplied the defects in their abstract by leave of court, the motion will be overruled.
For the reasons given the cause is reversed and remanded.