48 Mo. App. 246 | Mo. Ct. App. | 1892
This case was before this court on a former appeal, and is reported in 39 Mo. App. 663. It is an action of replevin for four mules of the alleged value of $500. The defendant purchased tire mules from Joseph M. Fulton. Prior to his purchase Fulton had conveyed the mules, together with other property to the plaintiff, in trust to secure a debt due from Fulton to Berth old & Jennings, of St. Louis. On the trial from which the former appeal was prosecuted, and, .also, on the trial from which the present appeal is prosecuted, the deed of trust was objected to by the -defendant on two grounds: First. That it did not ■sufficiently describe the property. Second. That it was not recorded in the book for the recordation of chattel mortgages. Both of these objections were ■decided against the defendant, after much consideration, by this court on the former appeal. The court, therefore, at the last trial admitted the deed of trust in evidence, but, at the close of the whole case, discovered That it was invalid on its face, for reasons which had not occurred to the defendant’s counsel or to this court. "The court accordingly, of its own motion, instructed the jury “as to the effect of the deed of trust, that it was void on its face, because it gave the mortgagor on its face a power of disposition over the property covered by the deed of trust,” and directed the jury to return a verdict for the defendant.
The clause of the deed of trust from which this -deduction was made by the court is as follows: “ Also, all other property of the same or similar kind and nature hereinbefore described, which, during the existence of any portion of the indebtedness hereinafter mentioned, shall be bought by the said party of the first part, or substituted by him for any of the personal property herein conveyed, to supply any breakage, loss or waste of the same, or any. part thereof; it being agreed and understood that this instrument is to be and constitute a lien as well upon all the property hereinbefore
It is plain that this language does not confer upon the mortgagor any general power of sale, or any general power of substitution by way of sale, but that the only power of substitution which it confers is a power of substitution ,for the purpose of supplying breakage, loss or waste of the property. This does not bring the case within the decision of the supreme court in Stoddard v. Jones, 78 Mo. 518, nor within the decision of this court in State to use v. Busch, 38 Mo. App. 440. When it is considered that a part of the property covered by the mortgage was a sawmill, portions of which are constantly liable to wear out or get broken, the appropriateness of the language to the subject-matter of the deed is apparent; and it is not at all apparent that the parties intended thereby to make a conveyance to the use of the mortgagor, within the meaning of our decision.
But it is argued that; if the deed in this particular is doubtful upon its face, this doubt is cleared up by the evidence of the plaintiff himself. It is undoubtedly the law that, in order to render a deed of trust for a mortgage fraudulent in law, it is not necessary that it should appear on the face of the instrument itself, that a general power of sale and substitution is reserved to the mortgagor; but it is sufficient, if it be shown by extrinsic evidence that such was the agreement and intent of the parties. Bullene v. Barrett, 87 Mo. 185. But this is true with this distinction, that, where the infirmity of the instrument appears on the face of the instrument itself, the court is to declare it void as matter of law, and is so to instruct the jury; whereas,
The evidence adduced in the present case, which is supposed to show this fraudulent agreement and intent, was as follows: C. M. Jennings, a member of the firm of Berthold.& Jennings (beneficiaries in the deed of trust under which the plaintiff claims), testified as follows: “While the deed of trust was in force, I knew J. M. Pulton had exchanged a roan mule for a horse. He asked about doing it, and I told him to go ahead and do it. I don’t know anything about J. M. Pulton selling some of the mules to a mule-buyer here. I heard of his letting Dr. Warren have two mules. * * * I gave him permission to exchange these mules for other-mules and horses; was told of his selling mules to a mule-buyer.”
The court here is of opinion that this evidence was not sufficient to take to the jury the question whether the parties to the mortgage intended, at the time when they made it, that the mortgagor should hold possession of the mortgaged property with a general power of sale for the purpose of substitution. If the mortgage itself had contained a clause that the mortgagor might substitute any of the personal property for other property of like kind, provided the mortgagee should consent thereto in each particular case, it would not have had this effect. Clearly this evidence does not help out the erroneous instruction given by the court, , which declares the deed void on its face, so as to make the judgment a judgment for the right party.
With the view of obviating a- third appeal, we are asked to consider certain rulings of the trial court on the last trial, rejecting evidence tendered by the plaintiff. When the mules were replevied in this case, September 29, 1886, the defendant gave the forthcoming
Our judgment in the former appeal and in this appeal disposes of all questions exc'ept the question of value and damages. With the hope that this litigation may be finally ended, we reverse the judgment of the circuit court, and remand the cause with directions to confine the next trial to the assessment of the value of the property in controversy and such further damages as the jfiaintiff may have sustained through its caption and detention. It is so ordered.