Campbell v. Allen

38 Mo. App. 27, 1889 Mo. App. LEXIS 415

• Court: Missouri Court of Appeals
• Decided: December 2, 1889
• Status: Published

Opinion

Gill, J.

This is an action of replevin, brought by the plaintiff trustee, to recover the possession of a sorrel mare. The plaintiff succeeded below, and defendant has appealed to this court.

Plaintiff claims title, as trustee, under a deed of trust, executed by Frank N. Price, the former owner of the mare, to secure payment of a note of one hundred and fifty dollars, made by said Price to Samuel L.. Black, while defendant claims title under an execution sale. If the note, thus secured, was, at the commencement of this suit, still an existing legal obligation and had not been paid, and if said deed of trust was sufficiently specific in description to include the mare, then, .it would seem, plaintiff was entitled to recover, otherwise, not. The evidence, without substantial conflict, discloses the following state of facts:

Some' time after the maturity of the note of Frank N. Price to Black, Polly B. Price, the wife of said Prank, sent Joseph Price, Prank’s brother, to a bank at Slater, Missouri, where Black had placed the note for collection, with instructions to pay the amount due on the note, and take an assignment of the note to her. Joseph Price took the money thus furnished by the said Polly Price and went to the bank, paid the amount due on the note and requested the cashier to assign the same to Polly Price. The cashier refused to assign the note in writing, as he said he was not authorized to do so. Joseph Price objected to marking it paid, and thereupon the cashier simply endorsed, on the back of the note, a receipt from Polly B. Price of the one hundred and twelve dollars, balance due, and delivered over to Mrs. Price’s agent the said note and deed of trust.

Some three or four days subsequent, Joseph Price, relying on the advice of an attorney, that to clothe Mrs. Polly Price with the rights of a holder and owner of the note, it would be best to have a written assignment on the back thereof from Mr. Black, applied to Black, and did secure an endorsed assignment in these words:

‘ ‘ Por value received I assign the within note to Polly B. Price, without recourse on me.

‘‘(Signed) S. L. Black.”

The question is, did the transaction amount to a payment, or was it a purchase of the note.

There can be no doubt as to Mrs. Price’s intention in the matter. She purposed becoming the owner of the note. She intended a purchase of the instrument, not its payment. It is true, that the bank officer, holding for collection for Mr. Black, refused to pen an assignment on the note, and that Mrs. Price took the same without such endorsement. Yet she paid the one hundred and twelve dollars, and the note and deed of trust were given into her possession, with a distinct understanding, as the evidence shows, that she was then the owner, and she was then the owner to every intent and purpose. It did not require an endorsement in writing to invest ller with the ownership of the property. Mrs. Polly Price was not a .party to the note, was under no legal obligation to pay it.

This being so, and it being clearly the intention, from the inception of the transaction, that she should use her own money, as she did, to purchase, and not to pay off and discharge the debt, the law will heed such intention and enforce the rights to the property. Swope v. Leffingwell, 72 Mo. 348; Allen v. Dermott, 80 Mo. 56, 59.

The position of defendant’s counsel, that the mortgage, or rather deed of trust, of Prank N. Price to Campbell, to use of Black, is void for uncertainty of description, is not well taken. “It is well-settled that a description of the property conveyed in a chattel mortgage is sufficient if it will enable a third person to identify the property after reasonable inquiry; and, further, that in legal proceedings, wffien the inquiry- is whether particular property was, intended to be embraced in such an instrument, parol evidence is admissible to aid the descriptive terms there employed.” State ex rel. v. Cabanne, 14 Mo. App. 294; Bank of Odessa v. Jennings, 18 Mo. App. 651; Jones on Chat. Mort., sec. 64, etc. The mortgaged property, in this case, was described as that of the mortgagor in Saline county, Missouri, and as “ one sorrel mare, about six years old, and about sixteen hands high.” By aid of this description, and upon “ reasonable inquiry,” third persons could but be well-advised that the mare in controversy was intended by the description. It would have been learned by “reasonable inquiry,” that the mortgagor had but one sorrel mare, and that she was about six years old and fifteen and one-half to sixteen hands high.

This cause was fairly tried, and submitted under instructions to which there coukl be no substantial objection. The judgment of the circuit court is affirmed.

All concur.