38 Mo. App. 440 | Mo. Ct. App. | 1889
Lead Opinion
delivered the opinion of the court.
This was an action on an indemnifying bond, given under the sheriff and marshal’s act, to indemnify the sheriff for levying an execution against Karl Kratzer upon nineteen cows belonging to a dairy which was, at that time, being conducted by, and in the name of, the defendant in execution. The plaintiff, who is the wife of Karl Kratzer, claims the cows by virtue of a chattel mortgage, made by him to her, to secure an antecedent indebtedness, growing out of money claimed to have been advanced by her to him, which money was her separate estate. There was a trial before a jury, and a verdict and judgment for the plaintiff, from which the defendants prosecute this appeal.
The chattel mortgage, under which the plaintiff claims, purports to convey to her four horses, three double wagons and two single wagons, twenty-two head of milk cows and three hogs. It contains the following clause: “If any of said cows, horses and hogs die, then the same are to be replaced by said Charles
We shall not enter into a discussion of the question how far this decision of the supreme court is opposed to the decision of this court in the case of Thompson v. Foerstel, 10 Mo. App. 290, which was also the case of a mortgage of chattels in a dairy; because, in so far as the two cases may be in conflict, the decision of the supreme court necessarily overrules the decision of this court. . .
Nor is it necessary to consider, whether or not the chattel mortgage under consideration in the present case would be good as to the wagons, since the levy was made only on the cows.
It appearing that the plaintiff upon her own showing has no title which will enable her to maintain the action, the judgment will be reversed but the cause
will not be remanded. It is so ordered.
Concurrence Opinion
delivered the following concurring opinion:
Under the ruling in Goddard v. Jones, 78 Mo. 518, the conclusion reached in the opinion of the court is unavoidable. “While the deed under consideration does not, in express terms, authorize the grantor to sell and dispose of the property, the power to do so is implied from the authority expressly given, to substitute other property of the kind conveyed.” That is the language used by Judge Norton ,in that case, and it is equally applicable here. But I do not understand that anything, decided in that case, is in conflict with the points decided in Thompson v. Foerstel, 10 Mo. App. 290, because where the grantor, by the terms of
Metzner v. Graham, 57 Mo. 406, and subsequent cases in the same line, merely decide that, where the mortgagor, by the terms of the deed, is bound to apply the proceeds of sales of the mortgaged property to the reduction of the mortgage debt, the mortgage is not fraudulent in law, even though the power of disposition is reserved in the deed to the mortgagor. This exception cannot cover the unrestrained power of substitution of other property; otherwise the exception, in its logical results, would abrogate the statute itself. But while the law, since the first enactment of the statute on fraudulent conveyances in this state, has always been as above stated, there has been some diversity in the opinions as to whether a mortgage is fraudulent in law, or fraudulent in fact, where the power of disposition is not reserved by the deed itself, but is proven by extrinsic evidence. The distinction between the two cases of fraud is obvious. To constitute fraud in fact a fraudulent intent is essential, but it is not essential to constitute fraud in law. To settle this apparent conflict, the case of Bullene v. Barrett, 87 Mo. 185, was certified to the supreme court, and that court, upon a full review of the authorities, decided that, upon proof by extrinsic evidence of an agreement giving to the mortgagor the power to deal with the property as with his own, the mortgage is rendered fraudulent in law, and the intent of the parties is immaterial.