114 Mo. App. 97 | Mo. Ct. App. | 1905
(after stating the facts). — The respondent argues that inasmuch as the hank attached the identical property in suit, and by said attachment affirmed the right of property therein to be in the attachment defendant, Totten, that it is thereby estopped from saying and maintaining on the trial of the interplea that it was holding said property at the time of the execution of the mortgage to the interpleader as a pledge from Totten. We do not think the fact that appellent was holding the property as pledgee of Totten would preclude appellant from attaching the property so held by it as pledgee. The two acts are in nowise inconsistent, but on the contrary, both affirm or recognize the right of property in Totten. By the attachment against Totten, appellant affirmed the right of the property levied upon to be in him, and by holding the property levied upon as a pledge from Totten, prior to and at the time of the attachment, appellant admits and is estopped from denying the superior right in Totten, the pledgor, subject, of course, to the lien of the pledge.
The law is universal that the pledgor of personal property still retains ownership of the goods, qualified, of course, by the rights of the pawnee. The pledgee, by taking the goods into his possession, becomes a lienor to the extent of the debt for which he holds the goods as security. The interest of the owner or pledgor is a vendible property interest, subject to the pledge, and is as much a proper subject of attachment and levy of execution against the owner as any other property rights of the proprietor. [Southworth & Co. v. Lamb, 82 Mo. 243; Richardson v. Ashby, 132 Mo. 238, 33 S. W. 806; Jordan v. Harrison, 46 Mo. App. 172.]
Drake on Attachments (7 Ed.), sec. 35, states the rule on the subject thus: “The right of a creditor to sue his debtor by attachment is not impaired by his holding
The question of liability of the property rights of the pledgor in the property pledged to levy of execution and attachment is not identical with the like question arising by virtue of a chattel mortgage when the mortgagee is in possession of the goods under the mortgage, as under a chattel mortgage the law is well settled that after condition broken the mortgagor is no longer the proprietor, as. the proprietary rights of the property involved pass by virtue of the breach of the condition of the mortgage from the mortgagor and vest in the mortgagee ; therefore, there is no property right of which the mortgagor is proprietor on which a writ may be successfully levied, and for the mortgagee to assert title in himself because of condition broken, would be inconsistent with the assertion of title in the attachment defendant by attaching the goods as the property of such defendant. The law regards the mortgagee in possession of the goods under the mortgage as the owner thereof and will not permit him to hold the goods in one hand under the mortgage as the owner, and with the other, point to the attachment defendant as the proprietor; and it was upon this principle that the cases of Boettger v. Roehling, 74 Mo. App. 257, and Ottumwa National Bank v. Totten, 94 Mo. App. 596, were decided. Those casfes are distinguishable, as above indicated, from the phase of the case at bar now presented.
The case of the pledge is different, however, in that the pledgor retains the right of proprietorship in the
It is the office and purpose of the interplea to try and determine the title and ownership to specific chattels and the right of the sheriff to seize and hold them under his writ as the property of the attachment defendant. The sole issue thereon is the question of ownership, and of course, as ownership is usually accompanied with the right of possession, the right of possession is incidentally tried and determined. This is true to such an extent that in the case of Burgert v. Borchert, 59 Mo. 80, it was spoken of as a statutory replevin engrafted upon a suit
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The attempted showing on the alleged pledge to plaintiff bank in this case went to the very essence of the alleged title of the interpleader. The proffers of proof were to the effect that the cashier, as agent of the plaintiff bank, then and there had possession of the property involved under a prior arrangement with Totten whereby the property was pledged to the bank for a suf
The further question in the case contended for by the appellant is that the description in the mortgage to the interpleader is insufficient as against the plaintiff in attachment. When this case was here before Judge Bland, in the opinion, said: “There is some question as to the sufficiency of the description in Madden’s mortgage. The description is somewhat vague and indefinite. Its sufficiency may depend somewhat upon extraneous facts.” We can say as much again; but upon a retrial of the cause, the proceedings of which are now under consideration, it seems that extraneous facts alluded to bv the learned judge in the prior opinion, have been supplied in the record sufficiently to eliminate the question of insufficient description from further consideration. Inasmuch as the evidence all shows, and about which there is no controversy, that the property mentioned in Madden’s mortgage was actually pointed out and delivered to Madden by his mortgagor, Totten, before the attachment in this case was levied, and that Madden was in possession thereof, in the public road, conveying the same to his farm, before and at the time of the levy, and therefore prior to the intervention of the rights of plaintiff bank as attaching creditor, the question is not open
On this question, the Kansas City Court of Appeals, in the course of the opinion in the case of Springfield Engine & Threshing Co. v. Glazier, 55 Mo. App. 100 said:
“It has been decided that, when a mortgage was fatally defective but possession was delivered to the mortgagee before the rights of third parties had attached, that such third party could take no advantage of the faulty description. [Bank v. Sargent, 20 Kan. 576.] Delivery cures defects in description. [Cobby on Chattel Mortgages, sec. 187; Morrow v. Reed, 30 Wis. 81.] So it often has been held in other jurisdictions that possession taken by the mortgagee with the mortgagor’s assent before the rights of third parties intervene, cures defects in description and is an identification of the property. [Frost v. Bank, 68 Wis. 234; Morrow v. Reed, 30 Wis. 84; Williamson v. Steel, 3 Lea 530; Stephenson v. Tucker, 14 N. J. 600; Cameron v. Marvin, 26 Kas. 624; Frank v. Miner, 50 Ill. 444.] And a similar rule has been repeatedly, recognized in this State. [Wood v. Hall, 23 Mo. App. 110; Moser v. Claes, 23 Mo. App. 420; Nash. v. Norment, 5 Mo. App. 545; Greeley v. Reading, 74 Mo. 309; Petring v. Chrisler, 90 Mo. 649; Dobyns v. Meyer, 95 Mo. 132.] And a delivery to a third person for the mortgagee’s use is a good delivery if accepted by the mortgagee. Delivery to an agent is as effective as a delivery to the mortgagee. [Cobby on Chattel Mortgage, sec. 508; Jones v. Swayze, 42 N. J. L. 279; McPartland v. Read, 11 Allen 231.]”
For the reasons above stated, the judgment is reversed and the cause remanded.