Vermont Marble Co. v. Achuff, 74 Mo. App. 42

Vermont Marble Co. v. Achuff

74 Mo. App. 42 | Mo. Ct. App. | 1898

Bland, P. J.

— Suit was begun in the Monroe circuit court by plaintiff against E. R. Achuff by attachment. A' lot of marble monuments,- finished and unfinished, found in the possession of Achuff, were seized under the writ of attachment issued in the cause, for which Ragsdale interpleaded. On trial of the interplea Ragsdale recovered a judgment, from which plaintiff duly appealed.

*45Ragsdale claimed right of possession of the attached property by virtue of a chattel mortgage executed to him by Achuff on the twentieth day of November 1895, to secure a promissory note made by Achuff to Ragsdale, datedNovember 5, 1895 for $1,600. The mortgage was duly acknowledged before a notary public and was indorsed as follows: ‘ ‘Filed this 20th day of November, A. D. 1895, at 2 o’clock p. m.

“Chas. A. Creith, Recorder.”

In the body of the mortgage it is recited that Achuff is a resident of Randolph county, and Rags-dale of Monroe county. Among other objections made to the reading of the mortgage in evidence, it was objected that the mortgage had not been recorded, as required by section 5176, Revised Statutes 1889, as amended by section 1, acts of 1895, entitled “Fraudulent Conveyances, Mortgages of Personalty.” (Acts 1895, p. 179.) Section 1, supra, provides that no mortgage or deed of trust of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and retained by the mortgagee or trustee or cestuis que trust, or unless the mortgage or deed of trust be acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are by law directed to be acknowledged or-proved and recorded, or unless the mortgage or deed of trust, or a true copy thereof, shall be filed in the office of the recorder of deeds of the county where the mortgagor or grantor executing the same resides.” “Such recorder shall indorse on such instrument or copy the time of receiving the same, and keep the same in his office for the inspection of all persons.” * * * Section 4 of the acts of 1895 provides that where the mortgage is filed for record by *46copy, the recorder shall certify on the back of the original that a. true copy thereof has been filed, giving date.” * * * No special provision is made by the act for such certificate or any certificate where the original instrument is deposited with and filed by the recorder. We must therefore look to the general statutes concerning the recording of deeds to ascertain what the statute has made evidence of the fact that the deed has been filed and recorded. Section 7435, Revised Statutes 1889, requires the recorder of deeds when he has recorded a deed to certify, on or under the deed, the day and time, month and year, when he received it and the book and page, etc., in which it has been recorded, and section 7451, Revised Statutes 1889, requires the recorder of deeds to have a seal of office.

creconierU of

*47 RchísTiTC.not con'

*46It may be inferred from what purports to be an indorsement made by one styling himself recorder, on the mortgage in this case, that the mortgagee undertook to have it recorded by the old method, that is bodily copied in a record of mortgages, or by depositing the original with the recorder under one of the provisions of section 1, acts of 1895,'supra. But there is no competent evidence here that either was done, for there is no certificate of the recorder that either was done, nor does it appear when or in what county it was done, if done at all. The official acts of a recorder can n0^ be known by his official signature alone. The law requires that his official act shall be attested by his seal of office, before it will take cognizance of the act. There was no competent evidence that the mortgage in this case had been recorded, and the objection to it as evidence should have been sustained. This objection to the mortgage may be cured on a retrial, by procuring the official certificate of the recorder to the fact that the instrument has been recorded by some one of the methods *47provided for by the acts of 1895, if such is the fact, and it may be shown that Achuff as contended fbr by respondent was actually a resident of Monroe county and not of Randolph county when he executed the mortgage. The recital that he was a resident of Randolph county is not conclusive of that fact. The objection that the property is not sufficiently described in the mortgage is not tenable. If, as seems to be the case, a person with the mortgage in his possession or the description before him, could have gone to the designated building and there pick out and indentify the articles, the description is sufficient. Bozeman v. Fields, 44 Mo. App. 432.

The evidence is very strong that when the mortgage was given some of the monuments were unfinished, and that all of them (being grave monuments) had to be lettered and put up when sold, and that it was agreed between Achuff and Ragsdale that Achuff should retain possession, finish the unfinished monuments, make the letterings, sell and put them up, and account to Ragsdale for the first cost retaining the value of his labor and whatever profits might be made.

This arrangement, if made was clearly for the benefit of Achuff, and under our statute, section 5169, Revised Statutes 1889, was fraudulent as to Achuff’s creditors. Goddard v. Jones, 78 Mo. 578; Stanley v. Bunce, 27 Mo. 269; Walter v. Wimer, 24 Mo. 63. For the errors complained of the judgment is reversed and the cause remanded.

All concur.