29 Mo. App. 192 | Mo. Ct. App. | 1888
This is a bill in equity seeking to enforce an agreement for a chattel mortgage, alleged to have been made with defendants’ intestate. The bill, among other things, states “that, prior to the death of said A. P. Moore, deceased, in February, 1883, said deceased applied to the firm of J. S. Hughes & Company, then bankers in Richmond, Missouri, for a loan of about two thousand dollars (82,000) to purchase cattle and liogs, aiid the corn to feed and fatten them for market; that thereupon a contract was made between said deceased and said firm of J. S. Hughes & Company, by the terms of which contract the said firm of J. S. Hughes & Company agreed to furnish the amount of money aforesaid, at the rate of ten per cent., and the deceased agreed ■to give them a lien upon the cattle, corn, and hogs purchased, and the proceeds thereof, when sold, and that the said proceeds of the sale of said cattle, corn, and hogs, when sold, were to be paid to said J. S. Hughes &
A demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, was overruled.' Defendants then answered. The trial resulted for plaintiffs and defendants appeal.
We are unable to sustain the decree in this cause. By our statute (sec. 2003) no chattel mortgage shall be valid against any other person than the parties thereto, unless possession be delivered or the mortgage be acknowledged and recorded. This is not a contest between the parties to the agreement, for, while the ad
The plaintiffs claim that the administrators and the creditors had notice of the agreement, and endeavor to sustain themselves by calling to their aid the -equity principle announced in Mitchell v. Winslow, 2 Story, 630, where it is said: “It seems to me the clear result of all the authorities, that, whenever the parties, by their contract, intend to create a positive lien or charge, either upon real or personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy.” This quotation has been approved by the Supreme Court of this state, in Wright v. Bricher, 72 Mo. 179; Rutherford v. Stewart, 79 Mo. 216, and France v. Thomas, 86 Mo. 80; but in each of these, there was a regular written mortgage duly acknowledged and recorded. And so, in Mitchell v. Winslow, 2 Story, 630, there was a duly executed mortgage, and the question in those cases was simply as to the
That notice of an unrecorded agreement for a mortgage cannot affect creditors’ rights, is made apparent by a single suggestion; a regular written mortgage, duly acknowledged, but not recorded, is void, though the creditors have actual notice of it. Bryson v. Penix, 18 Mo. 13; Wilson v. Milligan, 75 Mo. 41; Rawlings v. Bean, 80 Mo. 614. All question of notice is purposely avoided. Bevans v. Bolton, 31 Mo. 437. Surely, a-verbal agreement for a mortgage cannot be more potent than the written mortgage itself. When possession is= not delivered there can be no valid chattel mortgage in this state, as against creditors, unless it be executed, acknowledged, and recorded. No equitable doctrine can-overcome the force of statute law. Otherwise, the conscience of the chancellor would usurp the legislative department of the government and control the policy of the state. Judge Story, in his excellent treatise on the subject of Equity Jurisprudence (sec. 96), makes this very pertinent suggestion: “Whatever formalities are-required by statute must be punctually complied with, otherwise, the defect cannot be helped, or, at least, it may not perhaps be helped in equity, for courts of equity cannot dispense with the regulations prescribed by statute.”
II. There is another consideration, equally potent in overturning the decree in this cause ; there is no sufficient description or ascertainment of the property upon which the mortgage lien was to attach. The de
The result is the judgment should be reversed and the bill dismissed.