State ex rel. Jones v. White

70 Mo. App. 1, 1897 Mo. App. LEXIS 235

• Court: Missouri Court of Appeals
• Decided: March 22, 1897
• Status: Published

Opinion

Gill, J.

statement. The plaintiffs sued the defendant White (sheriff of Macon county) and the securities on his official bond, for damages on account of an alleged wrongful levy and conversion of certain plows on which the plaintiffs had a mortgage. At the trial below the circuit court first sustained a demurrer to plaintiffs’ evidence and forced a nonsuit; but subsequently the court sustained plaintiffs’ motion to set aside the judgment of nonsuit and defendants appealed.

The question is, whether or not, under the evi-' dence adduced at the trial, the plaintiffs were entitled to recover. The testimony tended to establish the following state of facts: On October 12, 1893, George L. and David M. Jones, composing the firm of Jones & Jones, and being indebted to plaintiffs, executed their promissory note whereby they promised to pay plaintiffs on January 1, following, the sum of $180; and to secure this note Jones & Jones made a chattel mortgage covering the plows in question. By the terms of this mortgage (and which was at its date duly recorded) it was agreed that the mortgagors should remain in possession of the property until default be made in the payment of the debt, “but in case of a sale or disposal, or attempt to sell or dispose of said property, or a removal or attempt to remove the same,” etc., * * * then the mortgagees were entitled to take the same into their possession. The next day after this mortgage was executed and recorded, another creditor of Jones & Jones (the mortgagors) sued them in attachment, and the defendant sheriff, under a writ therein, levied on the plows as the property of the mortgagors. Immediately thereafter, and before the implements were taken from the warehouse wherein they were stored, the plaintiffs, mortgagees, went to the sheriff and demanded possession of the plows. The sheriff refused to deliver the same and shortly thereafter plaintiffs instituted this action.

Trespass * chattel mortgage: levy: demand. In our opinion the foregoing facts, and which the evidence tended to prove, made a case for plaintiffs. We concede the contention of defendants’ counsel that until some condition of the mortgage was broken the mortgagors had the right of possession of the property, and had, too, an interest therein that might be levied on in attachment or execution. But when the plows were levied upon by the sheriff, in the action against the mortgagors, it became apparent that a sale or disposition thereof was being attempted; and by the terms of the mortgage, there at once vested in the mortgagees the right to take possession for their own security. This they demanded of the sheriff but he refused and took the property away. This was then as to plaintiffs, mortgagees, a wrongful conversion for which they had their action against the wrongdoer. Admitting then that the sheriff .was not guilty of trespass in seizing the property in the first instance, he was yet wrong in detaining the same after demand made therefor by the plaintiffs. At the time when plaintiffs made demand there had been a breach of a condition of the mortgage, and they were then, on the clearest principle, entitled to the property. The condition authorizing the plaintiffs, as mortgagees, to take possession of the' mortgaged property “in case of a sale or attempt to sell,” is broken as well where the sale, or attempted sale, is about to be made by and through an involuntary alienation, as where done or about to be done by the voluntary act of the mortgagor. The numerous decisions cited in briefs of counsel sustain what we have said.

damages. There is no injustice in permitting plaintiffs to recover in this action for conversion, as defendants’ counsel in argument seem to think, Said mortgagees would not be allowed to maintain this suit and at the same time recover the property in replevin; they may adopt either but not both means of redress. And besides the plaintiffs are only entitled to recover whatever interest they may have in the property: “Where the action is between the general and special owner directly, or between others claiming under or in privity with them; between a plaintiff having a qualified interest and a defendant who owns the residue, or has an interest in or charge upon it, the damages will be limited by the value of the plaintiff’s interest.” 3 Suth. on Damages [2 Ed.], sec. 1097; McCandless v. Moore, 50 Mo. 511.

pleading-. While in preparing the petition in this case, the pleader seems to have had in mind that the sheriff committed a trespass by levying in the first instance, and that the title and right of possession was then in plaintiffs, yet sufficient facts are alleged and shown to render defendants liable because of the sheriff’s failure to surrender the property when thereafter demanded. The objections then to the sufficiency of the petition are not well taken.

The order of the circuit court sustaining the motion to set aside the nonsuit and for new trial is affirmed. close that there was any proof adduced at the trial tending to show that the plaintiff was an incorporated city of the third class nor that it was incorporated at all. It was not necessary in a case of this kind to allege or prove that the plaintiff was incorporated. Under the provisions of section 1 of the act of April 19, 1893 (Session Acts 1893, p. 66), we are authorized to take judicial notice of the fact that the city of Trenton is incorporated a city of the third class. City of Savannah v. Dickey, 33 Mo. App. 522; City of Billings v. Dunnaway, 54 Mo. App. 1; City of Clarence v. Patrick, 54 Mo. App. 462. The plaintiff’s corporate existence can not be collaterally called in question. It can be done only in a direct proceeding for that purpose by the state which authorized its creation. St. Louis v. Shields, 62 Mo. 247; Fredericktown v. Fox, 84 Mo. 59; Thornton v. Bank, 71 Mo. 221; Shewalter v. Perner, 55 Mo. 218; Sand v. Coffman, 50 Mo. 243; Mathews v. Skinker, 98 U. S. 621. There is no provision either in the local option law, article 2, chapter 56, Revised Statutes, nor in tire statute relating to the restraining of animals running at large, article 2, chapter 5, Revised Statutes, nor in that relatin'g to township organization, chapter 162, Revised Statutes, requiring the courts to take judicial notice'of the adoption of said statutes, and therefore the adjudicated cases to which our attention has been called by the defendant have no application to the present case. Rousey v. Wood, 47 Mo. App. 465; State v. Searcy, 39 Mo. App. 393; Hayward v. Guilford, 69 Mo. App. 1.

All concur.