76 Mo. 605 | Mo. | 1882
Lead Opinion
This is an application for mandamus, in which we are asked to compel Judge Adams, of the circuit court of the city of St. Louis, to enter up judgment on the verdict of a jury in the case of Nannie M. Wright and M. L. Cray, her trustee, against Yogel, administrator of Bircher, deceased. The verdict was for plaintiff in said suit and was set aside by said court and a new trial granted. The plaintiff had obtained on a former trial of said cause a verdict which had also been set aside and a new trial granted.
It-is claimed by relators that the court was powerless, under the facts of the case and the statute, to grant a second new trial, and that it ought to have entered up judgment in favor of plaintiffs on the seeond verdict. This claim is based on section 8705, Revised Statutes, which pro
It is contended by counsel in the case at bar that the court misdirected the jury in its instructions, and was, therefore, justified in granting a second new trial. Under the ruling in the last ease above cited, the misdirection of the court is not sufficient to authorize granting a second new trial, if it appears that the second verdict is in consonance with the facts and real law of the case, but on the contrary, that in such case the court will be restrained from interfering with such verdict. So that it follows in the case before us that even if the court did misdirect the jury as contended for by counsel, yet notwithstanding such misdirection if the second verdict conformed to the facts and real law of the case, it was the duty of the court to enter up judgment on such verdict and refuse a second new trial. We are of the opinion that the verdict in this case is of that character, and in the language of Judge Scott in the case of Pratte v. The Judge, supra, “ it is use. less to examine the instructions.”
In December, 1876, the notes given for the money loaned by Nannie M. Wright became due and were unpaid. She was about to bring a suit for this property through her trustee, with the view of enforcing her lien under the deeds of trust, when an agreed case was made up between the parties as to the matters in controversy between them, which case was finally appealed to this court, and an opinion given in the case of Wright v. Bircher, 72 Mo. 179. The question submitted to the court was as to whether Bircher, by virtue of the lease, had a lien upon the property to secure the payment of the rent, and this court held that Bircher had a lien upon the furniture for the full amount of the rents, which by the terms of the lease would accrue within the term for which the house was let, not to. secure the first installment merely, but to secure each installment. The question as to the right of possession was disposed of by a stipulation : that if the court found that Bircher had a lien, then a judgment for possession also might be rendered. In the agreed statement qn which said case was submitted to the court, the question of the right to the use of said property by Bircher was expressly excepted from the submission, and the right to hold him accountable for such use was in express terms reserved.
The property was sold on the 31st day of May, 1877, and was bought in by Bircher at something over $14,000, and something less than the amount of his claim for rent. There was also evidence tending to show that the usable value of this property for the time Bircher used it was
Ever since the ease of Robertson v. Campbell, 8 Mo. 365, 615, was decided, it has been the settled law ot this State that when personal property is mortgaged or conveyed by deed of trust to secure the payment of a debt, the mortgagee in such mortgage or trustee in such deed of trust becomes invested with the title or ownership of such property after breach of the condition therein contained. Lacey v. Giboney, 36 Mo. 320; Dean v. Davis, 12 Mo. 112; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26. Hence it follows that on the 16th day of December, 1876, in consequence of the failure of Malin to pay the debts, (they having matured,) which the deed of trust was given to secure, the plaintiffs became the owners of the personal property therein described, and as such owner, notwithstanding the fact that Dr. Bircher had a prior equitable lien on the property and the possession of it, still if he used it in carrying on and conducting the hotel business, had the right to recover the value of such use. While, under the judgment of this court, Dr. Bircher had an equitable lien prior to that created by the deed of trust, and the right to the possession of the property, by stipulation of the parties, he had no right to use said property, unless such use was necessary for its preservation, and make profit of its use, without accounting to the owners for such use, who in this case we have seen were the plaintiffs.
The lien acquired by Dr. Bircher, by virtue of the reservation contained in the lease of his hotel to Malin, did not confer upon him the title to the property, nor put him on the footing of a mortgagee in a specific chattel mortgage after condition broken. Burgess v. Kattleman, 41 Mo. 480. His relation to the property was more in the nature of a pledgee than, a mortgagee, and as such, while he might retain the possession of it, he could not use it for his own
For the reasons herein given, we think relators are entitled to a judgment on the verdict, and that the second 3. mandamus. new trial was forbidden by the statute; and as it has been held in the cases of Boyce v. Smith, supra, and Pratte v. The Judge, supra, that mandamus is the proper remedy in such cases, it is hereby ordered that the alternative writ be made peremptory.
Dissenting Opinion
Dissenting.—With the doctrine announced by the majority of the court in the foregoing opinion, in relation to the right of the circuit court to set aside verdicts and grant new trials, I find no fault; but I dissent from that portion of. the opinion which decides that the verdict of the jury was in accordance with the law and the facts of the case. It is conceded that Bircher’s lien had a priority over the mortgage held by relator. Under that lien he sold the property, and it did not sell for enough to pay his debt. Admitting that he was accountable for what the use of the property was worth, from the time he took possession to the date of. the sale, I hold that he was entitled to deduct from that sum an amount equal to the balance due on his debt and was liable to Nannie M.Wright only for the balance. The circuit court erred in not so declaring the law. The verdict was against this view of the law, and the circuit court committed no error in setting it aside.