Watkins v. Crenshaw & Hill

59 Mo. App. 183 | Mo. Ct. App. | 1894

Smith, P. J.

This is an action of replevin which was brought to recover the possession .of. a horse. There was a trial in the .circuit court resulting in a judgment for defendant, from which plaintiff has appealed.

The principal ground of the plaintiff’s appeal is that the trial court erred in refusing to tell the jury, as requested by him, in effect, that even though Carmichael did not own the horse in controversy atthe time he executed the mortgage, and did not at that time have him in his possession, but afterwards came into possession of him as the owner thereof, then the said mortgage became operative as to said horse, provided said Carmichael actually had the description of said horse inserted in the mortgage, pretending to own him, and the verdict should be for plaintiff.

In view of the evidence it seems to us that this instruction, in connection with the others that were given, was proper and should not have been refused. The plaintiff claimed the horse under a chattel mortgage of which he was assignee, executed by Carmichael. There was testimony adduced, the tendency of which was to prove that the description of the horse taken under the writ was identical with that in the mortgage. Carmichael, the mortagor, testified that he did not own the horse taken under the writ at the time he executed the mortgage; that the horse described in the mortgage was another and different one long since dead and that he purchased the one in dispute some days after the execution of the mortgage and that he did not intend to include him in the mortgage. He produced a postal card written by one Haynes to him with ‘ ‘postof6.ee stamp mark G-allatin, May 2, 1891” relating to the transaction of the purchase of the horse. There was, therefore, some evidence tending to show that when Carmichael mortgaged the horse he had no title to him, but that afterwards he did acquire the title. The rule of law in this state is that if one mortgages chattels of which he has no title and afterwards acquires title thereto, it will inure to the mortgagee. Hickman v. Dill, 39 Mo. App. 246; Keating v. Hannekamp, 100 Mo. 161; Drug Co. v. Robinson, 81 Mo. 18; Jones on Chattel Mort. [3 Ed.], sec. 164. We think the plaintiff was, under the evidence, entitled to a submission of the case to the jury upon the theory embraced in the instruction to which we have already referred.

It is not perceived that the testimony of the witness Carmichael for defendant as to the active interest displayed by plaintiff in having the witness indicted and arrested in a criminal prosecution has any relevancy to the issues involved in the case, and therefore the same should not have been excluded by the court on the objection of the plaintiff.

The objection that the judgment is insufficient may be well taken but, whether so or not, we can not determine since the same is not found in the abstract of the record before us. For these reasons the judgment of the circuit court will be reversed and cause remanded.

All concur.