202 F. 692 | 8th Cir. | 1912
The Bosserman-Gates Live Stock & Loan Company, a corporation, brought an action of replevin against the Platte Valley Cattle Company, a corporation, for cattle in the latter’s possession on the ground that the plaintiff had a special property therein of the value of $12,000 by virtue of a chattel mortgage thereof made by R. D. Brown on December 7, 1909, wherein default in the payment of the debt had been made. The defendant denied the averments of the plaintiff’s complaint. Two hundred and eighty cattle were taken from the defendant under the writ of replevin and delivered to the plaintiff at the commencement of the action, and the verdict and judgment were that the plaintiff recover 1 cent damages for the detention of these cattle and $924, the value of certain cattle
The defendant offered to prove these facts at the trial: All these cattle had been mortgaged by R. D. Brown to the Welpton Investment Company to secure his debt of $10,000 to that corporation on May 25, 1909, more than six months before the mortgage to the plain-" tiff was given. This mortgage had been duly filed for record on May 26, 1909. About May 9, 1910, Brown sold these cattle for their full value to the defendant under an agreement between the Welpton Company, Brown, and the defendant that the purchase price realized by the sale should be applied first to the payment of Brown’s mortgage debt to the Welpton Company, and that the remainder only should be paid to him. This agreement was performed. The sum of $12,-700 was due to the Welpton Company on its mortgage debt. This was paid out of the proceeds of the sale, and the remainder, $400, was paid to Brown. Thereupon the Welpton Company released its mortgage, and Brown made a bill of sale to the defendant. The defendant was in possession of the cattle pursuant to this transaction when this action was commenced and. they were taken from it under the writ of replevin. An objection to the defendant’s offer to prove these facts was made on the ground that they were incompetent, irrelevant, and improper under the issues. That objection was sustained, and this ruling is the first error assigned.
Estoppel in pais is a creature of equity. But since the decision of the Supreme Court in Dickerson v. Colgrove, 100 U. S. 578, 583, 584, 25 L. Ed. 618, it is equally available in actions at law even in the federal courts. Drexel v. Berney, 122 U. S. 241, 253, 7 Sup. Ct. 1200, 30 L. Ed. 1219; Wehrman v. Conklin, 155 U. S. 314, 327, 15 Sup.
In Reagan v. Aiken, 138 U. S. 109, 112, 113, 114, 11 Sup. Ct. 283, 284 (34 L. Ed. 892), several creditors who were mortgagees in a chattel. mortgage brought an action at law against the marshal and his sureties for the value of the mortgaged property which the marshal had seized and converted under a writ against the mortgagor. The defendants answered that the debt secured by the chattel mortgage had been secured by a mortgage on real estate also, and that the real estate had been sold and the proceeds applied in part payment of the claims of the creditors secured by the chattel mortgage. This answer was met by the objection that an accounting was necessary under the defense pleaded to ascertain the respective amounts due to the various chattel mortgagees, and that an accounting could be had in a suit in equity only. But the Supreme Court held that the defense presented the question of partial payment of the indebtedness, that “how it was made was immaterial; the fact and the amount were the substantial matters and these were matters provable and determinable in an action at law.” May it not be said in the case in hand that the values of the respective interests of the contestants here 'in the mortgaged property were substantial matters, that it was not material how these parties acquired their interests, so that they actually had them, and that these values were provable and determinable at law ?
Dickerson v. Colgrove, 100 U. S. 578, 583, 584 (25 L. Ed. 618), was an action of ejectment, and the defense was an estoppel in pais. This defense was challenged on the ground that it was not available at law.. But the court held that the right of possession and the title of the plaintiff’s grantor inured by virtue of the estoppel to the defendant who was in actual possession of the land and that this defense of estoppel in pais could be pleaded and proved at law. Speaking of the action of ejectment the court said:
“This is,a possessory action, and the plaintiff, to entitle himself to recover, must have the right of possession; and whatever .takes away the right of possession will deprive him of the remedy- of ejectment. * * * This is the rule laid down by Lord Mansfield in Atkyns v. Hoarde, 1 Burr. 119. ‘Ejectment,’ says he, ‘is a possessory remedy, and only competent where the lessor of the plaintiff may enter, and every plaintiff in ejectment must show a right of possession as well as of irroperty.’ If the plaintiff in the present case was not entitled to possession, how, according to this authority, could he recover? If he had recovered, and a court of equity would have enjoined him from executing the judgment by a writ of possession, we ask, again, how could he recover in this action? Is not the concession that relief could be had in equity fatal to the proposition we are considering? * * * The reason given for the rule of inurement and estoppel by virtue of conveyances is that it avoids circuity of action. Does not the same consideration apply with equal force in eases of estoppel in pais ? Why is it 'necessary to go into equity in one ease and not in the other? * * * The common law is reason dealing by the light of experience with human affairs. One of its merits is that it has the capacity to reach .the ends of justice by the shortest paths. The passage of a title by inurement and estoppel is its work without the help of legislation. * * * Whether the title passed or not, the fact that the plaintiff was not entitled to possession of the premises was fatal to the action.”
The judgment below will accordingly be reversed, and the case will be remanded to the court below, with instructions to grant a new trial. It is so ordered.