297 S.W. 727 | Mo. Ct. App. | 1927
The facts are substantially as follows: Plaintiff was a general creditor of defendant E.A. Riga and obtained a judgment against him in January, 1925. An execution was issued upon said judgment and placed in the hands of the sheriff, who made a levy on the personal property in controversy, July 26, 1925. J.N. Chaney, hereinafter referred to as claimant, was the father-in-law of defendant, E.A. Riga, and had signed the latter's notes for sums aggregating $1000 or more, which claimant had been compelled to pay. Thereafter, on August 1, 1923, for the purpose of evidencing the indebtedness of defendant to claimant, defendant executed a promissory note for $1000 payable on demand to the order of claimant. This note was unsecured and bore no credits. December 1, 1924, defendant executed a chattel mortgage to plaintiff conveying certain personal property described as follows: "One pure bred Boar Barrington Burns Jr., ten brood sows and all increase, fifteen head milk cows, ten head calves, one Fordson tractor, disc and plows, hay baler. All my household and kitchen furniture of all description.
"Property located on the Chaney farm in New Madrid county, Missouri."
The mortgage recites that it was given to secure the note of date, August 1, 1923. Thereafter, on June 22, 1925, defendant Riga executed *157 a chattel mortgage to claimant to secure the same note above described, said mortgage covering certain growing crops, which need not be further described since no question is made as to the sufficiency of the description in the latter mortgage. This mortgage also contained the following clause: "This conveyance is made as additional security for the payment of a promissory note of grantor herein to grantee herein for $1000 with eight per cent interest from date, and dated August 1, 1923, and due on demand, and is in consideration of the agreement of payee of said note extending the time of payment thereof to September 1, 1925, in addition to the consideration above set out."
The evidence tends to show that claimant had no knowledge of the execution of either of the foregoing chattel mortgages until after they were executed, although there is some evidence that the matter was discussed between defendant and claimant and that defendant had agreed sometime before the mortgages were given that he would secure claimant for his indebtedness to him. Under the view we take of this case it seems unnecessary to set out this testimony in detail. It also appears that, although the chattel mortgages were offered in evidence, there was no separate offer of the filing marks or any other positive proof of recording or filing of the instrument in the Recorder's office.
In passing on the question of the propriety of the court's action in sustaining the demurrer to the evidence, claimant's evidence must be taken as true and he is entitled to all favorable inferences that may be drawn therefrom. [Cusack Co. v. Lubrite Mfg. Co., 261 S.W. 727.] With this rule in mind we shall consider the three points raised on this appeal i.e., (a) Is a pre-existing debt a good consideration for a chattel mortgage as against a general creditor where no new consideration is received at the time of the execution of the chattel mortgage? (b) Does the description in the first chattel mortgage herein, sufficiently describe the property? (c) Did the introduction of the chattel mortgages in evidence carry with them proof of their filing in the Recorder's office shown by the certificate of the Recorder on the back thereof?
(a) It is claimant's contention that a debtor has a right to prefer a creditor by giving a chattel mortgage or by any other suitable means, to the exclusion of all others. Ample authority is cited in support of that proposition. [Jeffrey v. Mathews,
The true rule, according to the weight of authority, is that a pre-existing debt constitutes a good consideration for a chattel mortgage but not a valuable consideration and, therefore, the mortgagee takes the property subject to such equities as might be asserted against his grantor. [Cass County Bank v. Hulen, 195 S.W. 74.] We have found no decisions in this State dealing with this proposition from the standpoint of the change in the law as to promissory notes brought about by the adoption of the negotiable instruments law, wherein an antecedent debt is made a valuable consideration for a promissory note, as distinguished from a good consideration. [Sec. 812, R.S. 1919; Bank v. Morris,
(b) The sufficiency of the description in the first chattel mortgage is questioned. The rule is that where a chattel mortgage contains a description which would enable a third party, by its aid, together with such inquiries as the instrument itself suggests, to identify the property, the description is sufficient. It then becomes a question of fact for the jury. [White v. Meiderhoff,
(c) It is urged there was no evidence that the chattel mortgages were recorded. If not recorded prior to the levy the mortgages then would not be entitled to priority. The record shows that the two mortgages were offered in evidence, the offer being in language as follows: "Claimant next introduced in evidence, claimant's exhibit `F,' being a chattel mortgage given by Earl Riga to J.N. Chaney on a part of the property in question and under which claimant makes his claim to said property, being as follows:" It is plaintiff's contention that the introduction of the mortgages in evidence did not carry with them the certificate of the Recorder on the back thereof, showing the recording or filing of the instruments. The rule in Nebraska seems to be that unless the offer is sufficiently broad to *160
cover the indorsements on the back of an instrument the introduction of the instrument in evidence does not carry with it such indorsements. [Comstock v. Kerwin,
But regardless of that rule, we think it may reasonably be inferred from the evidence that the mortgages were recorded. Claimant alleges the recording thereof in his petition, giving the date. Plaintiff's answer denies that plaintiff has a valid claim, but alleges the title of claimant is the result of a fraudulent conveyance made without consideration. Under the pleadings we doubt if the allegation as to recording contained in the petition was put in issue. It further appears that no objection whatever was made to the introduction of the chattel mortgages in evidence. Under the provisions of section 2256, Revised Statutes 1919, an unrecorded chattel mortgage, where the mortgagor retains possession, is invalid as to all persons other than the parties thereto. Therefore, in the absence of objection to the introduction of the instruments in evidence, and on a question of a demurrer to the evidence, we think claimant would be entitled to the inference that the mortgages were recorded as in the petition alleged. Moreover, no issue of the kind was raised at the trial and the cross-examination of claimant's witnesses practically concedes the recording of the mortgages. The point raised is of course highly technical. That they were recorded is clear and the demurrer to the evidence should not be sustained on any such theory.
We therefore hold that a case was made for the jury and the judgment should be reversed and the cause remanded for new trial. It is so ordered.
Cox, P.J., and Bradley, J., concur.