Sherman S. Jewet & Co. v. Preist

34 Mo. App. 509 | Mo. Ct. App. | 1889

Ellison-, J.

A demurrer to the petition in this cause on the ground that it did not state a cause of action was sustained and plaintiff appeals. The petition and demurrer present this question: Can the mortgagee in an unacknowledged and unrecorded mortgage of personal property enforce it at law or in equity as against the creditors of the mortgagor. We answer that he cannot. Hughes v. Menefee, 29 Mo. App. 192.

In this case, the mortgagor, after giving the mortgage, made an assignment to defendant Priest for the benefit of his creditors, the other defendants, and it is urged in behalf of plaintiff that as the mortgage was good as between the parties as the mortgagor could not object to the mortgage not being acknowledged or recorded — that his assignee, who stands in his shoes, cannot.

We may admit the correctness of this contention ; but in this case, the creditors under the assignment whose claims have been allowed before the assignee have interposed their rights as against the mortgagee. A creditor who has his claim allowed by the assignee is, in effect, a judgment creditor (Roan v. Winn, 93 Mo. 503), and as such is in a condition to enforce his rights against a fraudulent mortgagee.

We can see no objection to the creditors being made party defendants in the cause.

We have not considered the propriety of the question in this case being raised on demurrer from the fact that no objection is urged in that respect. The parties appearing to desire a decision on the law of the case as presented.

The judgment is affirmed.

All concur.