61 Mo. 435 | Mo. | 1875
delivered the opinion of the court.
Suit for injunction and for foreclosure of chattel mortgage, brought in July, 1872. In the Spring of 1870, one Sigemont was the owner of certain hotel furniture and fixtures, which were under mortgage to one Welch for $3,600, which incumbrance was, in the Summer of 1872, removed by the payment of the debt thereby secured. While, however, the incumbrance in Welch’s favor still subsisted, Sigemont, in April 1S70, leased the premises to Long & Carroll for a term of five- years at a yearly rental of $10,000, and sold the furniture,
It rests altogether in the option of the mortgagee whether he will resort to one or more of the three-fold and concurrent remedies afforded by the law. (Thornton vs. Pigg, 21 Mo., 249.)
I have searched the record in vain in the endeavor to discover anything indicative of a waiver of their mortgage lien on the part of the plaintiffs. No donbt there are cases of that sort, but in all of them, as in that of Anderson vs. Bumgartner (27 Mo., 80) cited by defendants, there must exist the element of equitable estoppel — something in short which forbids the assiguee from asserting his lien against innocent purchasers, misled by7 his representations, or by7 his failure to speak when he should have done so. But nothing, of that kind can be laid to the charge of the plaintiffs.
We may7 concede that the pleadings admit that by the terms of the mortgage between Long & Carroll and Sigemont the rents of the hotel property were first to be paid, and yet it is not seen what bearing that admission can possibly have here, as by the compromise effected between Long & Carroll and Sigemont, all question as to priority of the rents over the notes transferred to plaintiffs is forever banished from consideration ; since Sigemont certainly regained the property dis
The judgment is affirmed.