86 Mo. 80 | Mo. | 1885
— This is a suit to recover specific personal property seized by the defendant, as sheriff of Buchanan county, under an execution against Samuel A. Richmond. Plaintiff claims the property under a •deed of trust executed by said Richmond and wife on the twenty-eighth day of September, 1881, to plaintiff, .as trustee, to secure a note for $30,000, executed by said Richmond and payable to Robt. W. Donnell, of the •city of New York, and conveying for that purpose a certain tract or parcel of land in the city of St. Joseph, on which there is, and, at the date of the seizure of said goods, was, a hotel building and all the furniture, carpets, fixtures, beds, bedding, linen, tableware, cutlery, glassware, queensware, plate, bar room fixtures and furniture, wines and liquors, cigars, and stores, then, ■or therafter, to be placed in said hotel, and all the appurtenances, appliances, and fixtures of whatever nature then, or thereafter, placed in said hotel.
It appears that in September, 1881, Dr. Richmond borrowed of Donnell $30,000 to pay off a mortgage on the hotel property and furnish the house. Retaining .$10,000 to pay off a mortgage, and $3,000 commission, Donnell procured Donnell, Lawson and Simpson to give Richmond a general letter of credit for $17,000 on Sep. tember 7, 1881. The mortgage in question was. executed September 28, 1881. They supposed that $20,000 would be sufficient to furnish the hotel, but instead of that
The judgment creditors, under whose executions the property in controversy was seized, acquired no lien upon the property until their executions were levied. Each was upon the identical property for which the debt it represented was contracted. Neither the mortgagee nor the trustee ever had possession of the goods under the mortgage. In Wright v. Bircher, 72 Mo. 179, and Rutherford v. Stewart, 79 Mo. 216, this court held that similar mortgages to the one under consideration gave the mortgagee an equitable lien upon the subsequently acquired goods, but has never gone so far as to hold that, by such a mortgage, the legal title to the after-acquired goods passed to the mortgagee. The authority principally relied upon in those cases was that of Mitchell v. Winslow, 2 Story, 630, in which Judge Story held that, a contract for a lien upon property not in esse, created, an equitable lien. To the same effect is the leading English case of Holroyd v. Marshall, 10 H. L. Cases, 192; Belding v. Reed, 3 Hurlstone & Coltman, Exch. Rep. 961, followed Holroyd v. Marshall, and arose under a mortgage similar to the one under consideration. To-the same effect is Reeve v. Whitmore, 4 DeG., J. & S. 1; Wright v. Bircher, and Rutherford v. Stewart, supra, were suits in equity. A recent English case, Hallas v. Robinson, of which the syllabi will be found in the Central Law Journal, May 29, 1885, seems to be in full accord with the other English cases. The great weight of authority, both in the United States and in England, supports the view that a mortgage of chattels not in esse, or not owned by the mortgageof at the execution of the mortgage, will not pass the legal title to the property,
Cases might be conceived, which would be exceptions from the rule, a,s, for instance, where the execution ■of the mortgage and the acquisition of the property are constituents of the contract, and are so nearly connected in point of time as to become parts of the same transaction. But this is not such a case. It follows, therefore, that the plaintiff had not a title upon which he could Teco ver at law. If the suit were one seeking to enjoin the sale of property under the executions, other questions discussed in the brief of counsel would have to be considered, but in the view we take of the case, it is unnecessary to pass upon them.
The judgment of the circuit court, which was for the defendant, is affirmed.
