32 Mo. App. 211 | Mo. Ct. App. | 1888
Lead Opinion
— The respondent sued the appellants in the court below to recover damages for wrongfully seizing, on January 13, 1883, under a writ of attachment issued by a justice of the peace, in a suit in which .appellants were plaintiffs and one David Gfrauman was defendant, certain personal property consisting of saloon and restaurant fixtures and utensils, etc. This property, the respondent claims, it was entitled to possession of, as the holder of certain negotiable notes secured by chattel mortgage on said property, made by one A. J. Howell in favor of said Grauman, dated January 5, 1883, and duly endorsed before maturity by said Grauman, and delivered to the respondent as collateral security for a loan of eight hundred dollars made by respondent to Grauman. In their amended answer the appellants admitted the seizure on the day alleged by respondent, but denied that it was wrongful, and further alleged that on January 5, 1883, said Grauman was indebted to appellants and others, and in order to defraud his creditors, transferred the property ■ in controversy to said Howell a&d took back the notes and mortgage of Howell mentioned1 in the petition, to secure the “pretended purchase money;” that said sale and mortgage were made to cover up said property and to hinder, delay and defraud the creditors of said Grauman ; that prior to said seizure appellants had no notice that the bank held the notes mentioned in the mortgage, and also that afterwards, on January 24, 1883, appellants instructed the constable to release their attachment, which was done. It is not pretended that the plaintiff had any notice of Grauman’s fraudulent purposes or in any way participated therein. The mortgage securing these notes was conditioned ‘ ‘ that if I pay to the said David Grauman, his executors, administrators and assigns, my two notes each dated Kansas City, Mo., January 5, 1883, each payable for value received to the
I. It is contended that the mortgage and notes, known to the mortgagee, were a sham and executed for the purpose of defrauding the mortgageor’s creditors; and that though the notes in the hands of the plaintiff might, on account of their negotiability, be free from this vice, yet the mortgage pertaining only to the property might be defeated notwithstanding the assignment of the notes to plaintiff who had no knowledge of the fraud. I do not agree to this view. I think it is not supported by the cases of Linville v. Savage, 58 Mo. 248; Logan v. Smith, 62 Mo. 455, and Orriek v. Durham, 79 Mo. 174. The first-named case is not easily understood ; it was reviewed and explained in Logan v. Smith. Neither of the cases presents the question now before us, and the language used in those decisions must be construed with reference to the subject under discussion. In the recent case of Hagerman v. Sutton, 91 Mo. 519, our supreme court have disposed of the question by holding that the assignee or indorsee of a negotiable note, under-due, takes the mortgage precisely as he takes the notes, and as fully freed from all defenses. This is the view of the great weight of authority and has the endorsement of Daniell on Negotiable Instruments, sections 834, 834a, and of Jones on Mortgages, section 834. The matter is well stated in 16 Wall. 271, as follows : “ The contract as regards the note was, that the maker should pay it at maturity to any bona-fide endorsee without reference to any defenses to which it mieht have been liable in the hands of the
II. It is next insisted- that as the mortgage provides that in case of removal, depreciation, etc., of the property, the said Grauman, “ or his legal representative” may take said property and that said Grauman or “his legal representative” may proceed to sell the same, that plaintiff was not entitled to.the possession of the property and consequently ought not to maintain this suit; that no one was entitled to the possession but Grauman or his executor or administrator ; that the words, legal representative, necessarily mean an executor or administrator, and in no event can have reference to the assignees or indorsees of Grauman. Counsel, with commendable research, have collated a number of authorities on this branch of the case. There can be no doubt that primarily, the phrase, legal representatives, refers to one’s executors or administrators. This is well-nigh universally so, when applied in'connection with the decease of some one. It is not necessarily so when not so applied. The authorities cited are nearly, if not all, cases of this nature. Such as where one in a will, in referring to matters to occur after his death, speaks of his legal representatives. So where statutes authorize suits for the death of one to be brought by his legal representatives. But it is held that even in cases where the death of the party to be represented is in contemplation, that the context of the instrument may change the usual meaning of the words in the given case. This mortgage should be construed as a whole and in the light of its legal attributes. , The express condition of the mortgage is, that the notes must be paid to Grauman, his executors, administrators, or assigns. Then proceeding to provide a safety clause, it is stated that Grauman or his legal representative may take the property. Legal representative, as here used, unquestionably would include those who may represent him by assignment as well as those who would represent him after his decease. The law as we have-seen, gives to the mortgage, as being incident to the notes, the quality of
III. Though the notes in this case were only endorsed as collateral security, yet the endorsee holds them as for value and is entitled-to be protected as though an absolute bona-fide purchaser.
IY. The objections to testimony were too general to be noticed.
The judgment, with the concurrence of the other-judges, is affirmed.
Rehearing
On rehearing.
— We adhere to the original opinion in this case. To illustrate what is therein said under the second point we set out the following provisions of the chattel mortgage : “ The property hereby sold and conveyed, to remain in my possession until default be made in the payment of the said debt, and interest, or some part thereof; but in case of a sale or disposal or attempt to sell or dispose of said property, or a removal of, or attempt to remove the same from the saloon and restaurant above described or any unreasonable depreciation in value thereof, the said David Grauman or his legal representative may take the said property or any part thereof into his possession. Upon taking possession of said property, or any part thereof, either in case of default or as above provided, the said David Grauman or his legal representative may proceed to sell the-same or any part, thereof, at public auction, to the highest bidder, for cash, at the saloon and restaurant above-
In support of our conclusion, that his “legal representative,” as used in connection with the mortgagee, included his assignee, we simply desire to call attention to the fact, that by the use of the same words in connection with the mortgageor, in the conclusion of the mortgage, was clearly intended the mortgageor’s assignee as well as his executor or administrator.
In the original opinion nothing was said as to the point made by counsel for appellant, that the plaintiff had made no demand for the property in dispute, and that a demand was necessary to enable the plaintiff to maintain this suit. N or was anything said as to the further point made by the same counsel, that the plaintiff, by refusing to receive the property tendered to it before suit, by the constable, lost the right to sue for the conversion of the property thus tendered. These positions taken by counsel depend upon whether the levy by the constable upon the property was tortious. Because if the levy was wrongful, no demand was necessary — as must be admitted — and neither could the trespasser deprive the plaintiff of the right to proceed against him for the value of the property instead of receiving it back. Regor's Adm'r v. Owings, 35 Mo. 509. The writ of attachment afforded no protection to' the constable if he levied upon property not that of the defendant in the writ, but that of the plaintiff, a. stranger to the writ. If such was the case no demand, was necessary. “ When an officer levies on property
The real question suggested by the points raised by counsel is, therefore, did the defendant in the attachment have an interest in the mortgaged property subject to levy and seizure under the writ of attachment \ lie was technically the mortgagee as to said property ; but since the sale by him to Howell, who gave the mortgage back to him, was fraudulent and void as to the attaching creditors, and since the mortgage had been assigned by him to the plaintiff, a purchaser in good faith, and was therefore valid and binding in favor of the plaintiff, the real attitude borne by the defendant in the attachment suit to the property was, as to the plaintiff and the attaching creditors, that of owner subject to the mortgage. In other words, the defendant in the attachment suit, as to the plaintiff and the attaching Creditors, had the rights of the mortgageor in the property, and none other. Was such interest in the property subject to levy \ In this state the interest of a mortgageor of personal property is subject to levy under attachment or execution only when he has a definite and determined right of possession. Jones on Chat. Mort. 587; King v. Bailey, 8 Mo. 332; Yeldell v. Stemmons, 15 Mo. 443; Boyce v. Smith, 16 Mo. 317; Foster v. Patton, 37 Mo. 529; Dean v. Davis, 12 Mo. 113. The right of possession must be for a definite period, possession during the pleasure of the mortgagee will not suffice. King v. Bailey, supra. “The bare possession of a chattel by a mortgageor with the consent or permission of the mortgagee, and determinable at his will, would not be the subject of sale, under an execution. Permission that a chattel may remain with one is
The defendant in the attachment had such possession of the property as was given by the provisions of the mortgage above quoted. That possession was not such as is required by the rule in force in this state to make the mortgageor’s interest subject to levy. Jones on Chat. Mort. sec. 556; Ashley v. Wright, 19 Ohio St. 291; Eggleston v. Munday, 4 Mich. 298; Welch v. Whittemore, 25 Mo. 86. The mortgage gave no definite and determined right of possession, and besides the right of possession, was according to the provisions of the mortgage, destroyed by the levy itself.
The case is, therefore, this: The officer under a writ of attachment against the mortgageor seized the plaintiff’s property in which the former had no leviable interest. The plaintiff had neither to make a demand for the property nor to accept it when tendered back.
Judgment affirmed.
