75 Mo. App. 518 | Mo. Ct. App. | 1898
At the trial the interpleader, to maintain the issue, introduced in evidence the mortgage under which he claimed to be entitled to the possession of the property. This instrument recites that the mortgagors-the defendants herein-for the consideration of $1 conveyed to the mortgage-the interpleader-the property therein described, being the same as that attached, “upon condition that we pay the said Firth Charles-worth our two certain promissory notes for the sum of five hundred dollars as follows: One note for three hundred and fifty dollars and one note for two hundred
An interplea, as has often been held, is in the nature of a suit in replevin ingrafted on an attachment suit. Hellman v. Pollock, 47 Mo. App. 205, and cases there cited. In an action of replevin for the recovery of the
Personalty which is mortgaged is subject to seizure under process against the mortgagor before the condition is broken and while the right of possession remains in the mortgagor for a definite period. A purchaser at a sale under such process would take the possessory right of the mortgagor subject to the lien of the mortgagee. Springate v. Furniture Co., 51 Mo. App. 1; Hellman v. Pollock, supra; Hickman v. Dill, supra. The interpleader’s mortgage did not prima facie show that at the time of the seizure by the sheriff that he had a general or special property in the goods so seized and the right to the immediate and exclusive possession. It follows that the court erred in the refusal of the plaintiff’s instruction and in the giving of that of interpleader.
As the interpleader’s prima facie case was neither established by the pleadings nor the evidence it results that the judgment must be reversed and the cause remanded.