Duke, Lennon & Co. v. Duke

93 Mo. App. 244, 1902 Mo. App. LEXIS 364

• Court: Missouri Court of Appeals
• Decided: March 3, 1902
• Status: Published

Opinion

SMITH, P. JV

— -The plaintiffs, partners engaged in the live stock commission business in Kansas City under the name of Duke, Lennon & Co., filed a petition in the nature of a bill of interpleader, in the circuit court, alleging that they, in their quality of live stock commission merchants, had sold for the defendant Cherry thirty-three head of steers for which they had received ’as the net proceeds of such sale $1,850.85; that the defendants Duke and Woods claimed to be the absolute owners of said cattle; that the defendant loan company claimed the proceeds of said sale under a certain chattel mortgage, executed by the defendant Cherry to them and recorded in the recorder’s office of Bates county in this State; that the defendant Cherry claimed some interest in said proceeds, which they (plaintiffs) brought into court.

The prayer was that the defendants be required to appear and set up their respective claims, if any, to said proceeds, etc. The defendants, it appears, were duly served with process and appeared to the action.

The defendant loan company filed what is termed a separate answer to the interplea, setting forth that in October, 1899, the defendant Cherry was the owner of said cattle, and while so being, executed a mortgage to the Globe Live Stock Commission Company on said cattle to secure the payment of a certain negotiable promissory note for $1,162.62, which mortgage was recorded in the office of the recorder of deeds of Bates county, and which was a first lien on said cattle; that said note, before the maturity thereof, had been assigned for value to said defendant loan company, who was the ■ "’nor and holder thereof. This answer of the defendant, loan company further alleged that in October, 1899, the defendant Cherry made a contract with defendant Woods to keep and feed said cattle, and placed the same in his possession for that purpose; that -under said contract said Woods was to feed said cattle for a specified time, at the expiration of which they were to be returned to defendant Cherry, who was to pay said Woods a specified compensation for such feeding; that Woods had, before the expiration of the time which said cattle under the contract were to be fed, shipped them- to Kansas City where he caused them to be sold by plaintiffs and thereby destroyed the security of the defendant loan company. The answer of the defendant loan company further alleged that the Globe Live Stock Commission Co., at the time of the execution of said mortgage, had no notice or knowledge of the said contract between the defendants Woods and Cherry for feeding said cattle. It was further therein alleged that the plaintiffs and defendant Woods had wrongfully converted said cattle to their own use. Judgment was demanded by defendant loan company against the plaintiffs and the defendants Woods and Duke for the value of the cattle, and that the proceeds of the sale of said cattle be applied in payment of the judgment. The defendants Woods and Duke filed a “reply and denial” of the “answer” of the said loan company which was to the effect, (1) that defendant Cherry in 1899 was the owner of said cattle subject to a lien for agistment and feed furnished to such cattle, with others, by defendants Duke and Woods, and that at the time the said cattle were turned over to the defendant Woods by defendant Cherry under said 'contract, that it was agreed between the defendants Woods, Cherry and Duke that he (Woods) should hold said cattle for the payment of the amount due defendants Duke and Woods for feed and pasture; (2) that in December, 1899, the defendants Duke and Woods brought an action before a justice of the peace, in the township and county where the cattle were situate, against the defendant Cherry, to recover the amount of their agister’s lien and for the enforcement thereof against said cattle; that in that action they had judgment upon which an execution was duly issued and levied upon said cattle by a constable and a sale thereof made, at which defendants Duke and Woods became the purchasers and owners thereof; (3) there was a general denial of the allegations of the separate answer of the loan company; and (4) a prayer that they be adjudged the lawful owners of the proceeds of said sale, etc. The allegations thus made in the “reply and denial” of the defendants Duke and Woods, were not controverted by any pleading, whatever.

It appears from the record that the claim of the loan company against the plaintiffs, for damages for the alleged wrongful conversion, was abandoned at the trial.

It is very well settled that an interpleading suit, like that brought by the plaintiffs in this case, involves two successive litigations; one between the plaintiffs in the bill and the defendants, upon the question whether or not the defendants shall interplead; the other between the different defendants, i. e., the interpleading itself. The subjects of these two litigations are wholly separate and distinct, and, therefore, require separate and distinct allegations and proofs. In such case the only decree that plaintiffs can have is that the defendants do inter-plead. When this is obtained, the plaintiff is altogether out of the suit, leaving the interpleading defendants alone to contest their conflicting claims. After the withdrawal of the plaintiff from the case, the controversy is then solely and exclusively carried on between the interpleaders claiming the fund. When the finding and decree determining the rights of the various contestants are entered, that puts an end to the whole controversy. Glasner v. Weisberg, 43 Mo. App. 214; State v. Kumpff, 62 Mo. App. 332; Arn v. Arn, 81 Mo. App. 133; Price v. Mining Co., 83 Mo. App. 470. When the defendants were brought before the court and did not, by an appropriate pleading, put in issue the substantive allegations of the petition, the plaintiffs were entitled to an order requiring the defendants to interplead. The case was then at an end so far as the plaintiffs were concerned.

The defendants then were at "liberty to file in the inter-pleading ease their respective petitions or bills interpleading for the fund. This was done, though somewhat informally. Each by his pleading stated the facts constituting his or its claim to the fund. Their interests were adverse one to the other. Appropriate pleadings should have been filed to make an issue on each of the claims stated by them. Each should have, by answer, pleaded his defense to the petition or inter-pleading bill of the other. In this way intelligent issues could have been made for the determination of the court.

In the present case the loan company filed a petition or interpleading bill setting forth the facts constituting its claim to the fund. Woods and Duke also filed a like pleading in which they set forth the facts which constituted their claim to the fund, but they went further and by a general denial put in issue the allegations of the petition or interpleading bill of the loan company. While this, according to what has just been stated, was perhaps irregular, it accomplished the double purpose of stating their claim and controverting that set up by the loan company. But the loan company did not, by any pleading, put in issue the allegations of fact made by Woods and Duke, in respect to their claim to the fund. These allegations not being controverted by any pleading of the loan company, must be taken for the purposes of deciding this controversy as admitted. Sec. 628, R. S. 1899. The case being one of purely equitable cognizance, it is for trial here de rumo, and in determining it upon the pleadings and evidence, we must take it as standing admitted 'that the defendants Woods and Duke were entitled to an agister’s lien against said cattle antedating the execution of the mortgage under which the said loan company claims the fund, and that they became the purchaser of said cattle at a sale thereof made under final process issued on a judgment given in an appropriate and valid judicial proceeding enforcing the lien.

The defendants Woods and Duke by their purchase of the cattle were brought into such relations to the mortgagor Cherry as to entitle them to invoke the aid of section 3404, Revised Statutes 1899, which declares that no mortgage or deed of trust of personal property shall be valid against any other person than the parties thereto, unless acknowledged or proved and recorded in the county in which the mortgagor, or graptor resides. Johnson v. Jeffries, 30 Mo. 423; Bank v. Bank, 50 Mo. App. 93; Drew v. Drum, 44 Mo. App. 25. The undisputed evidence shows that at the time of the execution of the mortgage in question, and for1 nearly a year preceding that time, Cherry, the mortgagor, had resided in Kansas City, Jackson county. The mortgaged cattle were located in Bates county and the mortgage was recorded in that county and not in Jackson county, the county of the residence of the mortgagor. The eases in this State hold that a mortgage so recorded is void under the statute as to third persons sustaining the relation to the mortgagor that the defendants do. Martin v. Perkins, 63 Mo. App. 310; Bank v. Holman, 63 Mo. App. 492; State v. Sitlington, 51 Mo. App. loc. cit. 259, and cases there cited.

And there are no facts in this case tending to show that Woods and Duke purchased the cattle in recognition of the mortgage of the loan company, so that in the application of the statute, it is controlled as in Mead v. Maberry, 62 Mo. App. 557. And it seems to us that for these reasons, and without reference to whether or not the description of the property contained in the mortgage was valid, or whether or not the mortgage was executed prior or subsequent to the inception of the agister’s lien enforced by the judgment under which Woods and Duke acquired title, the mortgage is invalid as to Woods and Duke.

We are unable to discover anything in the pleadings and evidence to warrant a conclusion different from that reached by the trial judge whose decree will be affirmed.

All concur.

ADDITIONAL OPINION.

The loan company brought an action of replevin against E. M. "Woods, one of the defendants in the interpleader suit, to recover the possession of the eleven remaining head of the forty-five steers placed in the latter’s possession by Cherry to be fed. The answer was ? general denial. By stipulation this case was tried by the court in connection with the inter-pleading eases, and the evidence in the latter was, as far as relevant, to be considered in the decision of the former. The defendant had judgment in this case and the plaintiff appealed.

The court, by an instruction requested by plaintiffs, declared that the proceedings by Woods and Duke to enforce a lien for feeding the cattle in controversy, was not binding on the plaintiff. The propriety of the action of the court in giving this instruction is not questioned by the plaintiff’s appeal.

The evidence discloses that at the time of the commencement of this action there was due the defendants a considerable sum of money for the feeding of the cattle in controversy for the preceding seven months. The cattle had been placed by Cherry in the possession of defendants prior to the date of the mortgage to be fed. The defendant, under the statute, was entitled to a lien on the cattle for his feed bill. Neither Cherry, the mortgagor, nor the plaintiff, tendered the defendant the amount of the feed bill claimed, or any amount whatever, before the commencement of this action. The defendant having thus acquired a lien on the cattle, he was in a position to call in question the alleged superior mortgage lien of the plaintiffs. And as that lien, for the reasons stated in the previous opinion relating to the interpleading case, must be held void as against the defendant, we need not notice the plaintiff’s refused instructions further than to say that under the evidence the court could have reached no other result than it did, and that, therefore, its action in refusing said instructions was not prejudicial.

The judgment will accordingly be affirmed.

All concur.