73 Mo. App. 224 | Mo. Ct. App. | 1898
This is an action which was brought to recover the possession of certain specific personal property consisting of a stock of merchandise. There was a trial by the court without the intervention of a jury, which resulted in a finding and judgment for the defendants, to reverse which judgment plaintiffs have appealed.
At the very threshold of the controversy here the defendants insist that if every error which the plaintiffs have assigned was sustained, that yet the judgment will have to be affirmed because it is disclosed by the evidence presented by the record that the plaintiff was not, at the time of the commencement of the suit, entitled to the immediate and exclusive possession of the property described in their petition, and that therefore .it is for the right party. This insistance must be determined in the light of the evidence and the rules and principles of law applicable thereto.
It is conceded that one Wren simultaneously executed two mortgages covering his entire stock of goods, the one to the Swofford Brothers to secure about $7,000, and the other to the plaintiffs to secure the sum of about $2,900. The latter recited that it was subject to the priority of the former. The recitals . of the two mortgages were identical except as to the names of the mortgagees and the amount of their respective debts. There was a provision in the mortgages authorizing the mortgagees or their agent before the maturity of the mortgage debts to sell the mortgaged goods for cash in the usual course of retail trade and to apply the proceeds, less the necessary expenses, to the payment of said indebtedness. It was further therein provided that any custody or control of the mortgagor over the mortgaged property should be as agent of the mortgagees to make sale, etc. It was also further provided that on default in the payment of the mortgage indebtedness, or in case of attachment or judgment against the mortgagor, or if it appeared impracticable to continue the sale, as specified in the mortgage, or if the mortgagees should deem themselves insecure, that the latter should have power to terminate any agency of the former and forthwith proceed to sell the mort
It further appears that thé said Wren, at the time of the execution of the two mortgages already referred to, also executed a third to secure his further indebtedness to the Blaslands-Parcels-Jordon Shoe Company and others. This mortgage is not found in the record, but it may be fairly inferred from the evidence in respect thereto that it contained provisions similar to those of the other two. These three mortgages, so far as they relate to the issues in this suit, may be read as one, and in which the priorities of the several classes of mortgagees are provided for in the order in which we have referred to said mortgages.
Immediately after the execution of the three mortgages the Swofford Brothers, the mortgagees entitled to priority, authorized Eeynolds, a former clerk of the 'mortgagor, to assume charge of the mortgaged property and to proceed to sell the same in the usual course of the retail trade. It appears that the business was for several months thereafter conducted in the name of Eeynolds, the money received from the sale of goods was deposited in bank in his name, and remittances to the Swofford Brothers were likewise made in his name. It also further appears that the mortgagor continued in the store and participated in the management of the business of the same. For some reason which is not made clearly to appear, Eeynolds, after several months’ service in the store, retired therefrom.
About the twentieth of September, 1895, Wren, the mortgagor, made a general assignment of all his property to Early, who took possession of the mortgaged stock of goods, under such assignment. On the twenty-third day of said last named month, the said Early, at the instance of the mortgagor and all of the
It is disclosed by the evidence that the plaintiffs, the mortgagees named in the second mortgage, with the consent of the Swofford Brothers, prior mortgagees, had, under the provisions of said second mortgage, advertised said property for sale on the day following that on which it was seized by defendants under the writs. It is in effect conceded that at the time of the commencement of this action the mortgage debt by the Swofford Brothers had not been discharged.
The rule is elemental that in an action of replevin or its statutory substitute, an action for the recovery of the possession of specific personal prop-M'ty, where the issue raises, as here, the question of title, it devolves on the plaintiff to prove that at the time of the caption he had a general or special property in the goods taken and the right to the immediate and exclusive possession.
Now, if the evidence in the present case shows that the plaintiffs were not entitled to the immediate and exclusive possession of the property in controversy, then the defendants’ insistance must be sustained.
Turning again to the suppletory agreement of
The mere fact that the plaintiffs were taking steps to sell out the mortgaged goods with the consent of the mortgagees named in the first mortgage, did not have the effect to give them the exclusive right to the possession. It is not pretended that the mortgagees in the first and third mortgages have, since the caption, assigned said mortgage debts to the plaintiffs (Cobbey on Replevin, sec. 429, and authorities there cited), nor that they had surrendered or in any way parted with the common possession held by them through Fox at the time of the caption.
If it was intended by the mortgagor and mortgagees to weld said suppletory agreement onto the
Entertaining this view of the case, it becomes wholly unnecessary for us to notice the several errors which the plaintiffs have assigned as grounds for the reversal of the judgment.
The judgment must accordingly be affirmed.