Turner v. Langdon

85 Mo. 438

• Court: Supreme Court of Missouri
• Decided: April 15, 1885
• Status: Published

Opinions

Black, J.

The plaintiffs, Turner, Frazer, Parry and West, partners under the firm name of Turner, Frazer & Co., and Douglass and Wiehl, partners under the firm name of R. Douglass & Co., commenced this suit in replevin on the thirtieth of April, 1881, to recover certain personal property. The defendant answered that he was the legal owner of the property, and prayed judgment for a return thereof. The evidence shows that Richey was in possession of the property, and on the nineteenth of April, 1881, made a mortgage on the property to plaintiff to secure two debts, one due to each of said firms. The mortgage was recorded on the twenty-second of April, 1881, at half past five o’clock, p. m. Both debts were due when this suit was commenced.

Mr. Adams testified that on the twenty-second of April he inquired at the recorder’s office and found no mortgage of record. lie then had the defendant, as deputy constable, to levy on the goods. He says he returned to the recorder’s office on the same day, and found the mortgage recorded. There was evidence of. the value of the goods. On this evidence the court directed a verdict for the defendant. The respondent has filed no abstract or brief, and hence his position with respect to this appeal is left to conjecture.

The chattel mortgage is not fraudulent on its face, and there was no sufficient evidence to direct a verdict on the ground of fraud. Proof of the possession of the property by Richey, and the recorded mortgage from him to the plaintiffs, and proof of the maturity of the debt, made a prima facie case for the plaintiffs. Mr. Adams, the witness, does not show, affirmatively, that the execution was levied before the mortgage was recorded. The execution was not read in evidence, nor does the record show when or by whom it was issued. The triers of fact might infer that the execution was levied before the mortgage was recorded, but this did not justify the court in assuming that to be the fact. This court has said where a “material fact is left in doubt, or there were inferences to be drawn from facts proved, the case, under proper instructions, should be submitted to the jury.” Kelly v. Ry. Co., 70 Mo. 604-608.

The judgment is reversed and the cause remanded.

Norton and Sherwood, JJ., dissent. The other judges concur.