197 Mo. App. 123 | Mo. Ct. App. | 1917
This is an action of replevin, instituted was entitled to the possession of two hundred and fifty bushels of corn, of the value of $112.50, wrongfully debefore a justice of the peace. Plaintiff alleged that he
Defendant, a butcher residing in Louisiana, Missouri, owned a tract of land near that city; and early in 1912 two colored men, Bibb and Johnson, also living in Louisiana, raised a crop of corn upon the land under an oral agreement entered into between defendant and Bibb. Defendant appears to have dealt with Bibb exclusively, and the latter will therefore be referred to as being the other party to the transaction throughout. There is some conflict in the testimony as to the exact nature of this agreement, but it is undisputed that defendant, as owner of the land, was, in any event, to receive one-half of the crop grown thereupon. On June 6, 1912, Bibb executed a chattel mortgage to plaintiff upon the growing crop to secure a note of $102.40, due in December, 1912, for money borrowed from plaintiff;,and plaintiff’s action in replevin proceeds upon the theory that by virtue of this mortgage he acquired title to Bibb’s one-half of the corn raised upon and harvested from this land. ■
Defendant testified that, as a part of the original agreement, and upon Bibb’s solicitation, he agreed to furnish Bibb feed for. the latter’s horses, and supplies from his butcher shop, to enable Bibb to plant and cultivate the crop; and that it was agreed that defendant would be reimbursed for such advances out of Bibb’s half of the com raised. And» defendant further testified that until so reimbursed he was to have and retain title to the entire crop. His testimony proffered along this line was at first excluded, but in answer to a question, to which no objection appears to have been interposed, he said: “He (Bibb) said that he would do it and let me have what I advanced him out of the balance of the crop; it was to be my corn until I got what he owed me out of his half. I was to hold all the corn until he satisfied my account.”
The mortgage executed by Bibb to plaintiff on June 6, 1912, was not recorded until August 2, 1912. There is a conflict in the testimony as to when defendant learned of its existence. Paintiff -testified that he told defendant thereof “a day or two” after its execution; but defendant denies this, and asserts that he knew nothing .of the mortgage until the corn had matured and a few loads thereof had been hauled away. It appears that the chattel mortgage purported to convey to plaintiff the entire crop and not merely Bibb’s'portion there-°f.
Defendant undertook to prove that after ‘the execution of the mortgage and while it was withheld from record, he made advances to Bibb, pursuant to the original agreement as testified to by defendant, amounting to $130.89; but the court, on objections of plaintiff’s counsel, refused to permit such proof to be made.
The corn raised on defendant’s land amounted perhaps to something over eight hundred bushels, and when the crop had matured a few wagon loads were hauled away by Bibb and Johnson — two of which plaintiff received — and the remainder was by them put in cribs on defendant’s place, tkerbulk of it being placed in one crib; it having been agreed between defendant and Bibb that defendant would take Bibb’s half of the. corn, less the few loads which had been hauled away, at forty cents per bushel, deducting for the advances made to him and paying cash for the remainder, if any.
There is likewise considerable conflict in the testimony as to how much, if any, of the corn sought t.o be replevied — .which" defendant was feeding to stock — remained in the crib in question at the time of the institution of the suit. But there is testimony in plaintiff’s behalf going to show that at least two hundred and fifty bushels then remained in this crib.
The jury returned a verdict for plaintiff, finding that “the property described in the petition, to-wit, one hundred and ninety bushels of corn, was at the date of the institution of this suit in the possession of the defendant,” etc., assessing the value thereof at $76. The judgment entered upon the verdict is that the plaintiff “have and recover of the defendant, Martin Lafferty, $76, the sum aforesaid,” together with interest and costs, “and that execution may issue therefor.”
That the relation of landlord and tenant did not exist between defendant and Bibb, we think is entirely
Apart' from divergencies in the results reached in the cases due to differences in the various agreements involved, there is considerable conflict of authority as to the respective interests or rights of the owner and the cultivator or cropper in and to the crop itself. It appears that the trend of judicial authority is to hold that a contract whereby one is allowed the use of land to cultivate, the owner to have a share of the produce for its use, will, in general, at least', create a tenancy in common in the growing crop. And this is said to be so whether the agreement operates as a lease or a mere “cropping contract.” [See Johnson v. Hoffman, supra; Kamerick v. Castleman, supra; Moser v. Lower, supra;
But cropping contracts frequently provide that until a division is had of the crop, the title and possession thereof shall remain in the owner of the land; and such provisions in contracts of this general character have led to much conflict and confusion in the adjudicated cases. It is unnecessary to discuss the matter at length. In the case before us defendant’s testimony is to the effect that the agreement here in question was that he would make advances necessary to enable Bibb to carry out his part of the contract; and that the title to the entire crop should remain in defendant until he had been reimbursed for such advances. When the contract takes this form and the landowner furnishes supplies necessary to enable the other party to produce the crop, it is generally held that his right to reimbursement therefor, out of the other party’s share of the crop, cannot be defeated by any mortgage or, other attempted disposition of such share in the meantime. [See Booher v. Steward, 75 Hunn 214; Hourland v. McKnight, 79 Ark. 427, 4, L. R. A. (N. S.) 698; Kelly v. Rummerfield, supra, and note in 98 Am. St. Rep. 953 et seq; Almond v. Scott & Co., 80 Ga. 95; 8 R. C. L. 373, 374.] AVhether this result be reached by regarding the landowner as having the complete title to the entire crop until the cropper’s portion is set over to him, such portion being in the nature of compensation for the latter’s services, or by considering the parties as tenants in common of the crop, the landowner having the right to hold the cropper’s share as security for advances, as some cases hold, is immaterial here. There is authority for the doctrine that a contract of this character, reserving to the landowner the title to the cropper’s share of the crop for advances, is in effect a chattel mortgage, and to be
Where the relation of landlord and tenant exists, and the landlord seeks by lease to retain a lien on specific property of the tenant, or upon the tenant’s portion of the crop, it is held that the lease in this respect operates as a chattel mortgage and must be recorded. [See Saunders v. Ohlhausen, 127 Mo. App. 54, 106 S. W. 541; Hardin v. Bank, 177 Mo. App. 44, 163 S. W. 306.] But cases of this character have here, we think, no application.
We regard it as quite clear that defendant’s claim for advances made Bibb, or for credit extended to him generally, -after the execution of the chattel mortgage on June 6, 1912, and before it was filed for record on August 2, 1912, is entirely unaffected by plaintiff’s mortgage. It is contended that, until defendant reduced his claim agaist Bibb to judgment, and secured a lien by execution, he had no right superior to that of plaintiff as mortgagee. But in this counsel are in error. The rule invoked applies to the claims of .prior creditors, i. e. those whose claims accrued prior to the execution of the mortgage; but if a mortgage is withheld from record, it is void as to creditors who extend credit to the mortgagor after the execution of the mortgage and prior to the filing thereof for record. [Williams v. Kirk, 68 Mo. App. 457; Dry Goods Co. v. Brown, 73 Mo. App. 245; Landis v. McDonald, 88 Mo. App. 335; Harrison v. South Carthage Mining Co., 95 Mo. App. 80, 68 S. W. 963; Brunswick-Balke Collender Co. v. Kraus, 132 Mo. App. 328, 112 S. W. 20.] The filing of a chattel mortgage for record, within a reasonable time, is, by force of the statute, essential to its validity. [Harrison v. South Carthage Mining Co., supra, l. c. 86.] And the creditor’s actual knowledge of the existence of the mortgage, is
It is true that a general creditor has no right to seize the property of his debtor without legal process; hut if he obtains peaceable possession thereof, he cannot he disturbed in that possession by a mortgagee whose mortgage, as to such creditor, is void for failure to file the mortgage of record. [Landis v. McDonald, supra; Dunlap v. Dunset, 81 Mo. App. 17.]
Beyond doubt the court erred both in its rulings on the admissions of evidence and in instructing the jury in respect to this matter.
But, without regard to the time of filing the mortgage, if defendant’s contract with Bibb was such as he claims, then, for the reasons indicated above, we are of the opinion that plaintiffs mortgage can' only attach to whatever may remain of Bibb’s portion of the corn after defendant has been satisfied for advances made, pursuant to the contract, to enable Bibb to carry out his portion thereof. As the contract was oral, and as there is a conflict in the testimony as to its nature, the question as to its character is one to be submitted to the jury. [See Moser v. Lower, supra.]
It is unnecessary to discuss the instructions given and refused. It may be well to note, however, that plaintiff’s first instruction is fatally deféctive — irrespective of the theory upon which it proceeds — in that.it purports to cover the entire case but leaves out of consideration elements essential to plaintiff’s recovery. It •is held that an instruction which purports to cover the entire case and directs a verdict, cannot he pieced out by other instructions, despite the oft-stated rule that instructions must he read and considered together. [See Hall v. Coal & Coke Co., 260 Mo., l. c. 369, 168 S. W. 977; Walker v. White, 192 Mo. App. 13, 178 S. W. 254.]
It may he well, also, to observe that the judgment entered below is not in form such as is authorized by the statute relating to judgments in actions of replevin in courts of record. Where a cause is tri§d on appeal in the circuit court, or other court in the county having
The judgment is reversed and the cause remanded, to be proceeded with in accordance with the views expressed above.