Turner v. Langdon

85 Mo. 438 | Mo. | 1885

Lead Opinion

Black, J.

The plaintiffs, Turner, Frazer, Parry and West, partners under the firm name of Turner, Frazer & Co., and Douglass and Wiehl, partners under the firm name of R. Douglass & Co., commenced this suit in *440replevin on the thirtieth of April, 1881, to recover certain personal property. The defendant answered that he was the legal owner of the property, and prayed judgment for a return thereof. The evidence shows that Richey was in possession of the property, and on the nineteenth of April, 1881, made a mortgage on the property to plaintiff to secure two debts, one due to each of said firms. The mortgage was recorded on the twenty-second of April, 1881, at half past five o’clock, p. m. Both debts were due when this suit was commenced.

Mr. Adams testified that on the twenty-second of April he inquired at the recorder’s office and found no mortgage of record. lie then had the defendant, as deputy constable, to levy on the goods. He says he returned to the recorder’s office on the same day, and found the mortgage recorded. There was evidence of. the value of the goods. On this evidence the court directed a verdict for the defendant. The respondent has filed no abstract or brief, and hence his position with respect to this appeal is left to conjecture.

The chattel mortgage is not fraudulent on its face, and there was no sufficient evidence to direct a verdict on the ground of fraud. Proof of the possession of the property by Richey, and the recorded mortgage from him to the plaintiffs, and proof of the maturity of the debt, made a prima facie case for the plaintiffs. Mr. Adams, the witness, does not show, affirmatively, that the execution was levied before the mortgage was recorded. The execution was not read in evidence, nor does the record show when or by whom it was issued. The triers of fact might infer that the execution was levied before the mortgage was recorded, but this did not justify the court in assuming that to be the fact. This court has said where a “material fact is left in doubt, or there were inferences to be drawn from facts proved, the case, under proper instructions, should be submitted to the jury.” Kelly v. Ry. Co., 70 Mo. 604-608.

*441The judgment is reversed and the cause remanded.

Norton and Sherwood, JJ., dissent. The other judges concur.



Dissenting Opinion

Sherwood, J.,

Dissenting.—In actions like the present one, the onus probandi is on the plaintiff, to establish the allegations of the petition, that at the time of the caption he had a general or special property in the goods taken, and the right of immediate and exclusive possession. 2 Gfreenleaf on Evidence, sec. 561; Cross v. Hulett, 53 Mo. 397. The issues on these points were fairly raised by the answer denying the allegations of the petition and alleging title in the defendant, and that he was also entitled to the possession of the property. And where the issue is on the plaintiff’s property his right to the possession at the time of taking is also involved in the issue. 2 Greenleaf on Evidence, sec. 563, and cases cited. And a plaintiff in an action of replevin must rely upon the strength of his own title, and if he fails to show title in himself, it is wholly immaterial whether the defendant has title or not. Johnson v. Neale. 6 Allen 227, and cases cited.

Under issues such as are raised by the pleadings herein, it has been ruled that any evidence is admissible on the part of the defendant, going to show that the plaintiff has neither property nor the right of possession, e. g., that the title was in a stranger: Schulenberg v. Harriman, 21 Wall. 44. How have the plaintiffs met the issues raised by the pleadings ? They have shown a chattel mortgage for the goods, which secured to them the payment of the debts therein specified. But it nowhere appears that those debts were due on the day the mortgage was filed for record. On the contrary, it appears that such debts became due some time afterward. Of course, under the rulings of this court, the plaintiffs, until their debt became due, and condition of the mortgage being thus broken, were not entitled to the *442possession of the goods. Sheble v. Curdt, 56 Mo. 437; Barnett v. Timberlake, 57 Mo. 499. This being the case, the levy by the constable of the execution on the goods gave him sxich a special property in the goods as would suffice to defeat plaintiffs’ action, unless their mortgage-was registered prior to the levy of the execution. Was-such registry prior to such levy ? If the testimony of Adams, the witness of plaintiffs, and the only witness on this point, be taken as true, the tendency of that testimony, and its only tendency, is to show that the levy of the execution occurred prior to the levy of the mortgage. There is no escape from this conclusion. At all events, his testimony, to state the case as strongly as possible-for the plaintiffs, and more strongly than the evidence-warrants, leaves it in serious doubt as to which, the levy or the registry, was prior in point of time. Now, on whom did the onus lie to resolve this doubt; to make if clear which had priority, the levy or the mortgage ?' Under the authorities, that burden was on the shoulders of the plaintiffs. Have they met the requirement of the-law in this particular ? If they have, I have not been able to find any evidence thereof.

It does not appear in whose favor the execution in-question issued, nor is it material to know. The plaintiffs, themselves, without objection from defendant, introduced testimony that an execution in the hands of the defendant was levied on the goods in dispute, and it must, therefore, be presumed that the execution was in all respects valid and based on a valid judgment. For these reasons I discover no error in the record, and am for affirming the judgment, and, therefore, dissent from the conclusion reached by the majority of the court,

Norton, J., concurs with me.