41 Mo. App. 200 | Mo. Ct. App. | 1890
Defendants, E. M. Miller & Co., obtained judgment against F. T. McCarthy, and had execution issued and levied upon a horse and side-bar buggy as the property of said McCarthy.. Plaintiff Fannie, who is McCarthy’s wife, in conjunction with him, instituted this injunction proceedings-against the constable and other defendants to restrain the sale, alleging that she had a chattel mortgage on the property, executed to her by her husband, which was unpaid. The injunction was made perpetual by the circuit court, and defendants appeal.
The mortgage is on the property in dispute, as well as other horses. It contains the usual provisions, permitting the husband to remain in possession until default, “but, in case of a sale or disposal,-or attempt to sell or dispose, of said property, or a removal, or
One portion of her testimony tends to show that he could make sales “as he saw fit, if he replaced something in its place.” If such should be considered the agreement between them, then it would still render the mortgage void under the view taken . in this state. Walter v. Wimer, 24 Mo. 63; Stanley v. Bunce, 27 Mo. 269; Goddard v. Jones, 78 Mo. 518. In the latter case it is said : “That, while the deed under consideration does not, in express terms, authorize the grantor to sell and dispose of the property, the power to do so is implied from the authority, expressly given, to substitute other
II. W e are aware that the rule is that a mortgage will only be declared void as a matter of law when it appears from its face that it is to the use of the grantor; and that it has been said “that the court will not hear extrinsic evidence in relation to the validity of the conveyance, and, on such evidence, as a matter of law, pronounce the conveyance void.” Weber v. Armstrong, 70 Mo. 217. Nor do we find this deed to be void as a matter of law. We so find it from the evidence, which it is our duty to examine in a.case of this kind. But, if this had been a jury case, and the testimony of the plaintiffs themselves unequivocally disclosed facts which rendered the mortgage void, it would be the duty of the court, as in other cases, to give a peremptory instruction.
The iudp’ment will be reversed.