51 Mo. App. 1 | Mo. Ct. App. | 1892
The suit is upon an indemnity bond given by the defendants to Springate, a constable, to protect him against a claim made by the Nelson Distilling Company under the provisions of section 6311 of the Revised Statutes of 1889. The trial of the cause by the court without a jury resulted in a judgment for the defendants. No instructions were asked or given, and the only exception saved at the trial relates to the judgment itself, which the plaintiff claims is contrary to the evidence.
The property levied on consists of certain bar-room utensils and a'stock of liquors, which were seized in the possession of Nortmann at New Haven, in Eranklin county, by Springate, the constable, under six executions issued by a justice of the peace on judgments against Nortmann. The evidence concedes that these executions were delivered to the constable on July 3, 1891, and on several subsequent days up to the seventh day of July, 1891, and all prior to the date when the chattel mortgage hereinafter mentioned came into the actual possession of the Nelson Distilling Company. The claim of the Nelson Distilling Company to the barroom utensils was based on a bill of sale executed by Nortmann to said company in April, 1888, and the claims to the liquors on a chattel mortgage executed by Nortmann to said company on the first day of July, 1891, conditioned to pay certain notes, none of which matured before July 20, 1891. The chattel mortgage was recorded on the second day of July, 1891, in Eranklin county, where the mortgagor resided, but was not otherwise delivered to the Nelson Distilling Company prior to the seventh day of July. It contains the following condition: “The property hereby sold and conveyed to remain in his (the mortgagor’s) possession until default be made in the payment of
The property was seized by the constable July 7, 1891, was advertised for sale on the eighth, and sold under the execution on the eighteenth and bought in at that sale by the Nelson Distilling Company. No part of the property had been removed from New Haven between the date of the mortgage and the date of the constable’s sale, nor was there any evidence that the property had depreciated in value, nor that other conditions of the mortgage had been violated between those dates.
In regard to the bill of sale of the utensils, under which the Nelson Distilling Company made one of its claims, there was evidence tending to show that the utensils were bought by the company for Nortmann and delivered to him; that he immediately thereafter executed the bill of sale to the company, but that there was no redelivery to the company, Nortmann continuing in the possession of the utensils up to the date of their seizure by the constable.
In regard to the chattel mortgage, the evidence tended to show that it was executed by Nortmann without any prior consultation with the Nelson Distilling Company, and that the first knowledge the company had of its existence was when they received it by mail on July 7, 1891.
This was in substance all the evidence bearing on the only question before us, namely: Can the judgment of the court be supported on any theory of law
The claim of the Nelson Distilling Company on the utensils was invalid, because the sale was not followed by delivery and change of possession. Wright v. McCormick, 67 Mo. 429. Touching that claim the judgment was the only one that could be rendered. Conceding for the sake of argument that the mortgage on .the stock of liquors took effect as a lien July 2, 1891, the day of its record, nevertheless it created a mere lien upon the property, leaving in the mortgagor a right of possession and property for a definite period, which was subject to levy and sale on execution. This right of possession and property had not expired July 8, 1891, when the claim of the Nelson Distilling Company was'filed with the constable, and in fact did not expire prior to the Constable’s sale, as the first maturing draft secured by the mortgage,fell due after the date of the constable’s sale. The court was warranted in finding from the evidence that no other condition of the mortgage had been broken prior to that date. The judgment of the court as to the second claim, therefore, is well supported in law under the facts presented by the evidence. Barnett v. Timberlake, 57 Mo. 499; State to use v. Carroll, 24 Mo. App. 358; Kennedy v. Dodson, 44 Mo. App. 550.
The respondent further contends in support of the judgment that as the mortgage first came to the actual possession of the Nelson Distilling Company after the delivery of the execution to the constable, and as the Nelson Distilling Company did not know that such a mortgage was to be given prior to its actual receipt, its lien was subsequent to the lien of these executions. The law in other states seems to be in support of that view. Wadsworth v. Barlow, 68 Iowa, 599; Oxford v. Blake, 45 Me. 602, and Dole v. Bodman, 3 Metc.
The judgment is affirmed.