44 Mo. App. 550 | Mo. Ct. App. | 1891
The plaintiff, a mortgagee of the personal property in controversy, brought this action of replevin against the sheriff, who had seized it under a writ of attachment, issued at the instance of one Horine against Scott, the mortgagor. The cause was tried by the court without a jury. The finding and judgment were for the defendant. The court refused all the instructions asked by the plaintiff, and upon the defendant’s motion declared as the law that, if the plaintiff was not entitled to the possession of the property specified in the mortgage at the date of the institution of this replevin suit, then he was not entitled to recover.
The mortgage bore date March 23, 1889, and was duly recorded two days thereafter. It conveyed to the plaintiff a lot of saloon fixtures and furniture, and a stock of liquors and cigars, as security for the payment of a note due ninety days after that date. The property was attached April 2, and replevied April 19, 1889. At the date of the institution of the replevin suit, the debt secured by the mortgage had not yet matured,
It will be thus seen that, under the uncontroverted facts of this case, the plaintiff was entitled to the possession of that part of the property in controversy which consisted of the saloon fixtures and furniture. There was some evidence tending to show that the mortgage was fraudulent as to the liquors and cigars, in so far as it was understood that the mortgagor might continue to sell them in the usual course of trade ; but there was no such evidence in regard to the fixtures, so that in regard to those the mortgage was valid under the evidence. Bullene v. Barrett, 87 Mo. 125. The court, therefore, erred in its instructions and finding.
As the cause will be remanded for new trial we will add the following, touching other complaints made by the appellant. The plaintiff in a replevin suit must
The judgment is reversed and the cause remanded to be proceeded with in conformity with this opinion.