73 Mo. 672 | Mo. | 1881
This was an action of replevin brought' July 24th, 1876, to recover possession of a lot of zinc spelter, valued at $1,200.
Both parties claim title through J. A. C. Thompson, who leased and operated certain zinc works at Weir City, in Cherokee county, Kansas, from January 1st, 1876, to
There is no stipulation in the mortgage limiting the rights of the mortgagee under the statute, and it is conceded that the spelter in question was part of that described in the mortgage, and that the debt has not been paid. No affidavit was made by the defendants, as required by section 3248 of the laws of Kansas, read in evidence.
2. Although the court may believe from the evidence that the zinc spelter described in the petition was fabricated by J. A. C. Thompson or by others out of ore described in the paper offered in evidence called a mortgage’ subsequent to the making and delivery thereof on the 1st day of February, 1876; yet, unless the court shall also believe from the evidence that said defendants, thirty days before the expiration of one year from the date of the alleged filing of said so-called mortgage, or some agent of theirs for them, made and filed in the office of the register of deeds, in and for the county of Cherokee, state of Kansas, an affidavit showing their interest in the property described in said mortgage and the amount of money thereby secured which then remained unpaid, the court will find for said plaintiff’, provided the court also believe from the eyidence that said plaintiff' purchased said zinc spelter in good faith.
3. Although the court may believe from the evidence that the said J. A. C. Thompson made and delivered to the defendants the paper offered in evidence, dated February 1st, 1876, called a mortgage, yet unless the court shall also believe from the evidence that the same was, within a reasonable time after said date, filed with the register of said Cherokee county; and that thirty days before the expiration of one year after so filing same, said defendants, or some agent or person for them, filed in the office 'of said register an affidavit stating the interest of defendants in the mortgaged property and the amount of money thereby secured then remaining due said defendants, the court will find for plaintiff, provided the court also believes said plaintiff purchased said zinc spelter in good faith.
For the defendants the court gave one .instruction, which was substantially in the language of section 3252 of the laws of Kansas, supra.
The only question presented by these instructions which need be considered, is, whether the defendants lost
The object of the statute requiring this affidavit to be made, was to keep the public informed from time to time as to-the condition of the title of incumbered personal property, and to furnish some reliable record evidence by which parties might be guided in dealing with such property. This statute, by its terms, can only be invoked by subsequent purchasers or mortgagees in good faith ; that is, by those who became such, after the period at which such affidavit should have been made. And creditors of the mortgageor manifestly cannot claim the benefit of its provisions when their claims are asserted before the expiration of the time prescribed. The plaintiff', however, is neither a subsequent purchaser nor mortgagee, nor is he a creditor. It is true he claims through those who were creditors of the mortgageor, but those creditors had asserted their claims, and he had purchased.from those claiming under the proceedings instituted by them, while the mortgage was undoubtedly valid, and before any affidavit was required to be filed. The plaintiff having acquired his rights and brought his suit while the mortgage was a valid a’nd subsisting incumbrance against him and those under whom he claimed, his right to recover cannot be aided by the subsequent failure of the defendants to make the affidavit required by law. The rights of the parties had become fixed before the default occurred. Besides, the property had been reduced to possession by the defendants within the year, and that of itself dispensed with the necessity for any affidavit. This view is supported by decisions in New York and Minnesota, where similar statutes are in force. Meech v. Patchin, 14 N. Y. 71; Dillingham v.
The point has been made in argument, though not raised by the instructions, that the mortgage is invalid as to the after-acquired property ; but we think this question settled by the decision of this court Wright v. Bircher, 72 Mo. 179. We see no reason why a distinction should be taken between a mortgage by a manufacturer of raw material to be purchased, and the property to be manufactured therefrom, and the mortgage by a merchant of property subsequently manufactured by another, and purchased by such merchant, and added to his stock in trade. The judgment will be reversed and the cause remanded.