Reynolds v. Smith

123 Mo. App. 229 | Mo. Ct. App. | 1907

GOODE, J.

On December 5, 1904, E. P. Triplett executed a chattel mortgage on a saw mill and appliances to plaintiff. The mortgaged property was at that time, it seems, in Lincoln county, but the sale of it, in case of default, was authorized to he at Paynesville, Calumet township, in Pike county. Said mortgage described Triplett as of Pike county. On April 15, 1905, Triplett executed a mortgage on the saw mill property to the Southwestern Port Huron Company. Subsequently the saw mill was taken possession of under the second mortgage for the benefit of the mortgagee, and this action of replevin was instituted by Reynolds to obtain possession on the theory that his mortgage was prior in point of time and created a first lien. Reynolds recorded his mortgage in Lincoln county and the Southwestern Port Huron Company recorded its mortgage in Pike county. It is contended that the Reynolds mortgage is invalid as against the Port Huron Company’s and must be postponed to said company’s mortgage because Triplett resided in Pike county at the time he executed the mortgage to Reynolds and the latter, instead of recording his security in Pike county, the place of Triplett’s residence, recorded it in Lincoln county. If, in point of fact, Triplett resided in Pike county on December 5, 1904, the date of the Reynolds mortgage, it was invalid as to the Port Huron Company. [R. S. 1899, sec. 3404.] But the contention of the plaintiff is that he resided at that date in Lincoln county. The court submitted the question of where Triplett’s residence was to the jury and the sole question for decision on this appeal is whether or not the evidence conclusively showed his residence to be in Pike county so that the court should have directed a verdict for the defendant. Prior to the fall of 1904, Triplett had for several years moved about a great deal in Lincoln and Pike counties, but even during those years the evidence strongly goes to show his real place of residence, or at least the place to which he returned after his frequent sojourns elsewhere, was in the village of Annada, in Pike county. He operated a saw mill, which he moved from one place to another wherever he could get a job of sawing timber, sometimes taking his family with him and sometimes leaving them at Annada. When the family were with him at the place where the saw mill was, they lived in a tent. Sometime prior to- the fall of 1904, Triplett had bought or built a small house in Annada for a home. In February of that year, the mill was near Whiteside, in Lincoln county, and for six or seven months, Triplett stayed there in a tent, perhaps having his family with him part of the time. There might be a doubt about whether he had a permanent residence in Pike county prior to September, 1904, in the statutory sense; that is, a place where his family resided permanently. [R. S. 1899, sec. 4160, par. 17.] But he and all the other witnesses agree that in September, 1904, he went back to Annada, and from that time on has been living in his house, and unquestionably was living there December 5, 1904, when he executed the mortgage to Reynolds. He voted in Pike county that year, his children attended school there and he had a home at Annada and has made it his home ever since. Triplett, whose testimony is the most favorable to plaintiff of all the witnesses, said positively that in the fall of 1904, he was living in Annada. Several attentive perusals of the testimony have convinced us the evidence showed conclusively Triplett’s place of residence at the date of the Reynolds mortgage was in Pike county and, hence, as the instrument was not recorded there, it was invalid as against the mortgage given to the Port Huron Company. Therefore the judgment will be reversed.

All concur.