77 Mo. App. 284 | Mo. Ct. App. | 1898
Lead Opinion
This action was brought by attachment wherein a stock of drugs was attached as the property of defendant Self. Interpleader claimed the property under a chattel mortgage executed to him by Self and a trial of his title resulted in his favor. Plaintiff appeals.
We pass over the objection made by plaintiff as to the sufficiency of the description in the mortgage with the remark that the description is ample to support the conveyance.
The mortgage was executed in January, 3893, and recorded in May of that year. Plaintiff’s claim against Self did not arise until long after the recording and consequently we rule that withholding' the mortgage from record for the time stated, did not affect its validity as against this plaintiff, since its action in dealing with Self could not have been founded on the absence of the mortgage from the record. If during the time the mortgage was withheld from record plaintiff, being misled, had permitted Self to become indebted to it, then the question would have been similar to Williams v. Kirk, 68 Mo. App. 462, and that of Barton v. Sitlington, 128 Mo. 174. But such was not the case.
Interpleader seems to have permitted Self to remain in possession from the time the mortgage was given until November 30,1896, a short while before the attachment was levied, when he took possession, as we must assume, since the finding in his favor.
Plaintiff further contends that the possession taken by interpleader was not such open and notorious possession as to be effective under the statute. This was also submitted by instructions and passed upon on the facts.
But it is further claimed by plaintiff that- inter-pleader by giving the delivery bond on the attachment being levied is estopped now to assert that the goods were his and not Self’s. This point is also not well taken from the fact that the court gaye a£ plaintiff’s instance the following intruction: “The court declares the law to be that if at the time of the levy of the writ of attachment in this case the interpleader did not assert any claims or right to the attached property but gave a forthcoming bond for the same; and that the sheriff by reason of interpleader’s failure to make or assert any claim to such property refrained from levying upon other property of the defendant not embraced in such mortgage then the verdict must be for the plaintiff in attachment.”
After an examination of the record and points made against the judgment we find no reason justifying us in disturbing it and hence order its affirmance.
Rehearing
ON MOTION non REHEARING.
We are asked to grant a rehearing in this cause chiefly cm the ground that we erred in holding the description of the property to be sufficient. The point made is that the description refers to an inventory of the goods, making it a part of the mortgage, and that the inventory did not accompany the mortgage and was not recorded. The description contained in the mortgage is as follows:
“The following described stock of drugs, etc., now-in the brick store house in Ashland, occupied at this date by the said W. B. Self. Said stock of drugs, medicines and other merchandise more fully described in an inventory of said goods taken on January 9th, 1893, which inventory is here made a part of this conveyance. There is also included in this conveyance all the furniture and fixtures of the said Self in his drug store, as follows: Prescription scales, counter scales, scales, clock, coal oil stove, 2 square show cases, 3 oval show cases, cigar case, 3 counters, prescription case, coal stove, dispensatory, safe, coal oil tank, screen doors;
If this description depended alone upon the inventory, or, if it was unintelligible without the inventory, there would be no description and the mortgage would be invalid. But the description, though partly general, is specific, full and complete without the . * * aid of the inventory. So it seems to be settled law that, though the schedule does not accompany the mortgage, the latter will yet be valid if it contain a sufficient description without the schedule. Jones on Chattel Mort., secs. 73, 74, 75; Pingrey Chattel Mort., secs. 151, 152; Cobbey’s Chattel Mort., sec. 164; Herman’s Chattel Mort., sec. 41. By giving a fair interpretation to the language making up the description, it is clear that the deed itself conveys a stock of drugs and medicines, then (at date of mortgage) in a brick store house occupied by the mortgagee in the town of Ashland; together with scales, stove, show cases, counters, etc. It is true that the description refers to other goods and furniture not mentioned in the deed, but embraced in the inventory. If there was any such property it would not be conveyed as against third parties, on account of there being no inventory. But such result would follow if there had been other property not included in the deed and no reference to an inventory at all. The deed merely fails in an attempt to include other property than that described. As to the property described in the deed itself, viz.: the stock of drugs, scales, counters, etc., the lack of an inventory is of no consequence. The inventory was only to contain a fuller description.’ But a fuller description, as we have seen, was not necessary.
Plaintiff cites somd authorities on the general proposition that when a contract or deed refers to a schedule, specification or inventory they become a part of the contract or deed. We do not think these militate against what we have said. But plaintiff cites us to the case of Shirras v. Caig, 7 Cranch, 48, which we think to .be authority in support of our views. The case involved a description in a deed to real estate as follows: “All that lot of land, houses and wharfs in the city of Savannah as is particularly described by the annexed plat, and is generally known by the name of Gairdner Wharf.” The plat was neither annexed to the deed, nor recorded. The plat in fact contained two lots. The court held that the description in the deed itself was sufficient to convey the lot known as Gardner's Wharf with the houses thereon, notwithstanding the absence of the plat. So, if we apply that case to the one at bar, we find, as before stated, that the
II. It is also urged as a reason for a rehearing that the possession taken of the property by inter-pleader will not have the effect to relieve it of the fact that Self was allowed by interpleader to remain in possession and sell in the ordin ary . , J course of business. The reason assigned for this contention is that the possession taken must be the concurrent act of the two parties, mortgagor and mortgagee. That the transaction amounts to a pledge and that as Self was shown to be of unsound mind when interpleader took possession he could not have consented thereto and hence the act of taking possession was not a pledge and was without effect. This contention is wholly unsound. The mortgage notwithstanding any agreement that the mortgagor could remain in possession and sell for his own use, was valid between the parties. The mortgagee does not need the consent of the mortgagor to take possession after condition broken. He can take possession as he may. He can replevin the property. He may take it wherever he finds it. It is his property. In the cases of Greely v. Reading, 74 Mo. 309, Petring v. Chrisler, 90 Mo. 649, and Dobyns v. Meyer, 95 Mo. 132, possession was given the mortgagee by the mortgagor or his representative, but we do not understand that the efficacy of possession comes from the consent of the mortagor that possession may be taken. As before stated, possession may be taken by the mortgagee by resort to the law based on the mortgage and yet it would hardly be contended that such possession- would not be just as efficacious, so far as determining the rights of subsequent attaching creditors as if it had been consented to by the mortgagor. Again, taking possession is not a new
The other judges concurring the motion will be overruled.
