10 Mo. App. 290 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The record in this case is somewhat long, but the ultimate facts upon which the rights of the parties depend are few, and, as we understand it, not in dispute. It appears that on August 1, 1874, William Waeckerle executed to Louis Phillippi a deed of trust to secure certain notes made'by him to Joseph Uhrig & Co. The notes secured by the deed were for various amounts, maturing at various times between six months and five years from the date of the deed. The property embraced in the deed consisted of sixty-five cows and certain horses, wagons, and other personal effects, belonging to a dairy, which was then owned and carried on by Waeckerle, at Rock Springs, in St. Louis County. The deed not only embraced, by enumeration or general description, all the personal property then belonging to the debtor, but it undertook to convey, “also, all the cows, horses, hogs, wagons, harness, utensils, and personal effects and chattels which, during the existence of any portion of the indebtedness” mentioned in the deed, “should be bought by the said first party, or substituted by him for the personal property” conveyed by the deed, “out of the proceeds of the personal property” conveyed by the deed, “ consent to said sale to be, however, obtained as hereinafter mentioned.” The deed also contained a covenant that the party of the first part “will not sell, assign, or dispose of any of said property without the consent of said party of the third part, and that he will not suffer or permit said property, or any part thereof, to be levied upon*seized, or taken away under any legal process whatsoever.
The deed also contained the following provisions with reference to the substitution of a trustee: ‘ ‘ The party of the second part, or, in case of his death, sickness, absence from the city of St. Louis, refusal, or other disability to act, the sheriff of St. Louis County for the time being, may enter any place where said property, or any part thereof, may be found, or is situated,' take possession thereof, and remove the same to any place he sees fit and proper, and may proceed to sell said property,” etc., to satisfy the debts secured by the deed.
After the making of the deed, in pursuance of the Scheme for the separation of St. Louis County from the city of St. Louis, the county of St. Louis became an independent subdivision of the State, not embracing any part of the city of St. Louis, and the boundaries of the city of St. Louis were so enlarged as to embrace Rock Springs and the site of the dairy in question. On April 23, 1879, after this separation of the city of St. Louis from St. Louis County, the Circuit Court of St. Louis City, upon a showing that Louis Phillippi, the trustee in the deed, was absent from the city of St. Louis and had become a non-resident of the city and State, and that the property was within the limits of the city of St. Louis, and no longer in the county of St. Louis, “ which fact,” the order of the court recited, “.would render the execution of said trust impossible by ^he sheriff of the county of St. Louis,” appointed William
The next clay, April 24, 1879, Thompson notified Waeckerle of his appointment as trustee, and demanded payment of the debt of him, or else possession of the cows mentioned in the deed. Waeckerle pointed out to him thirty-two cows, which are the subject of this controversy, in a pasture, and Thompson took possession of them by placing a watchman over them. . On the next day, April 25th, Waeckerle executed to the defendant (Foerstel) a chattel mortgage of the cows in question, to secure a note, payable one day after date, for the sum of $575, which sum the defendant claims had been due him since the year 1877. The plaintiff advertised the cows for sale, in accordance with the terms of the deed of trust, and kept possession of them through his watchman, but without removing them from the pasture where they were, and permitting Waeckerle to milk them and to have the milk from them. On the fourteenth day after he had thus taken possession, namely, on May 7th, during a temporary absence of his watchman, the defendant (Foerstel) seized the cows and drove them off. The plaintiff then brought this action of replevin against Foerstel, and under it, the cows were delivered to him by an order of the court, and he sold them in pursuance of the deed.
The deed of trust under which the plaintiff claims was duly recorded, and the evidence also shows that Foerstel had actual notice of it, and of the possession of the plaintiff under it, before the making by Waeckerle of the chattel mortgage to him on April 25th.
The case was tried by a jury, and resulted in a judgment for the plaintiff.
Wé are clear of doubt that this was the only judgment which could have been lawfully rendered; and this relieves us from the necessity of inquiring in detail into the propriety of the intermediate steps by which the. judgment was
It is obvious that these authorities, taken in connection with the language of the deed before us, do not sustain the defendant’s position. The deed not only does not reserve to Waeckerle, either by express terms or by necessary implication, a power of disposition of the property, but it expressly prohibits him from making any disposition of it without the consent of the beneficiary in the trust.
Nor is there anything in the decision of this court in the case of Hepburn v. Mueller (ante, p. 87), decided at the present
But, although there may be nothing in the terms of such a deed, from which the court can, as matter of law, pronounce it void, yet it may be shown as a fact, by extrinsic evidence, that it was the intention of the parties to the deed, that the grantor should continue to exercise a general power of disposition over the property ; and when there is evidence tending to show such an intention, it should be left to the jury to say, as a fact, whether the deed was intended as a security for a valid subsisting indebtedness, or whether it was intended to enable the grantor to keep possession of his property and dispose of the same at his pleasure, in which latter case it will be void. The State v. Jacob, 2 Mo. App. 183. But the mere fact that the grantor in such a deed, who is left in possession under the terms of the deed, does, contrary to the terms of the deed, sell the property thereby conveyed, and appropriate the proceeds to his own use, has no tendency to show that such was the intention of the parties to the deed ; and such evidence, if objected to for this reason, is properly excluded. Metzner v. Graham, 57 Mo. 404, 408, 409. Aparty cannot thus take advantage of his own wrong. Neither can a privy of a party then take advantage of such party’s wrong. If
Now, when we say that a certain contract, though void at law, is good in equity, what do we mean, where, as in Missouri, two remedial systems, known respectively as law and equity, are blended together as one system, administered in one court, and in but one form of action? I apprehend that we mean that if a contract would be upheld under
And the question is, whether the statutory action of replevin is such a process. That a trustee may maintain such an action for trust-property which was in existence at the time it was granted to him, is not open to controversy. Balcerv. Washington, 5 Stew. & P. 142; Pearce v. Twitchell, 41 Miss. 344; Rev. Stats., sect. 3463; Wright v. Tinsley, 30 Mo. 389; Phillips v. Ward, 51 Mo. 295. It is true that this proceeds upon the idea that he is the holder of the legal title, and that the right which he asserts is not an equitable, but a legal right. But a trustee who has succeeded to the right of possession of things not in esse at the time they were granted to him has the same right of action, unless the statutory action of replevin is a proceeding at law in such a strict sense 'as wholly to exclude the consideration of equitable rights. A case in Ohio which will be hereafter examined, goes to show that this is not the nature of such an action. Chapman v. Weimer, 4 Ohio St. 481. Nor is that case alone in so holding. In Maine, it is said that “ it is a well-established and familiar rule of law, that a return of property replevied will not be ordered when in equity it ought not to be returned, though the defendant has judgment in his favor in the suit. In determining whether or not there should be a return, the power
In those jurisdictions where the two systems of remedial justice, called law and equity, are blended in a code and administered in a single court of original jurisdiction, as with us, the rule of the courts of law is so far recognized that it is conceded that a mortgage of after-acquired chattels will not, before the mortgagee or trustee has taken possession, operate to prevent such chattels from being levied on under an execution at law. But, even in such cases, the validity of such a mortgage is so far recognized by the courts that it is held that.a levying creditor subjects, under his execution, not a full property right in the chattel, but only the mort gagee’s interest therein, namely, an equity of redemption, and hence a purchaser at an execution sale would not be entitled to possession of the property until he had complied with the terms of the mortgage. Coe v. McBrown, 22 Ind. 252. And if such after-acquired property is levied upon under an execution before the trustee takes possession, and the trustee replevies it, and, as in this case, it is delivered to him, while the defendant? will, under the rule of law above stated, be entitled to judgment, yet he will be entitled to no more than nominal damages, and not to the value of the property thus taken from him under the writ of replevin, under a statute giving in such cases such damages as are “ right and proper.” Coe v. Peacock, 14 Ohio St. 187. And this, and nothing more than this, would have been the position of the defendant in this case, if his deed had been made two days earlier, so as to antedate the taking of possession by the plaintiff.
Of American courts, so far as I know, the Supreme Judicial Court of Massachusetts alone has taken the extreme view that mortgages of things not in esse will not be upheld in equity. We may even adopt the view taken- by that court, and yet, under the facts of this case, the result will
The same doctrine was applied by the Supreme Court of Ohio in a case at law. The debtor mortgaged a stock of goods to secure a debt, together with its future increase and additions, and providing that the mortgagee might take possession of such stock of goods, and also of all the goods that the debtor might thereafter have, whenever he should see proper. The mortgagee took possession, with the consent of the mortgageor, and on 'making an inventory it was found that a portion of the goods then in stock had been bought on credit the day previous. On the second day after the mortgagee had thus taken possession, the mortgageor confessed judgment in favor of such third parties for the value of the goods, and a constable thereupon levied an execution upon them, and the mortgagee replevied them ’from the constable. It was held that judgment in this action of replevin was rightfully given for the mortgagee. Chapman v. Weimer, 4 Ohio St. 481. That case is substantially the case before us.
In the hypothetical case stated by Dewey, J., supra, the mortgagee takes possession in pursuance of the power contained in the mortgage. In the actual case in Ohio, the mortgageor delivered possession to the mortgagee. In the case at bar, when the trustee demanded of the grantor in the deed of trust to know where the cows were which were embraced in the deed, the grantor pointed out some cows in a pasture, and the trustee took possession of them by placing a watchman over them, and notifying the grantor in the deed that he took possession of them for the purpose of selling them, in pursuance of the terms of the deed. We see no distinction in principle between cases where the mortgagee or trustee takes possession in invitum in pursuance of the license contained in the deed, and cases where the mortgageor or grantor voluntarily puts him in possession. In the former case as well as in the latter, if the property of
The judgment is affirmed.