(concurring).
I concur in the result reached by the principal opinion, that is, that the case be remanded (1) for a finding disposing of the funds deposited in the registry of the court by defendant in satisfaction of her purchase money note and mortgage; (2) for a trial and determination of the value of the property at the time it was replev-ined, and damages, if any, for its withholding; and (3) judgment in accordance with the findings on (1) and (2).
However, I do not agree that a mortgagee in possession of chattels by replevin may not exercise sale rights provided for in its contract with the mortgagor and must retain the chattels until final judgment in replevin, unless the mortgagee first gives the mortgagor fifteen days notice of its intention to exercise those rights. Nor do I believe that it is necessary that the court so hold, or that it is necessary that our statutes be amended to meet the situation presented in this case, because I have the view that Chapter 533, RSMo 1969, V.A.M.S., is intended to, and does, provide for every contingency liable to arise between the parties in a replevin action.
In my view the result reached by the principal opinion demonstrates clearly that *84our replevin statutes meet the situation presented here. For example, § 533.430 provides that where the property has been delivered to the plaintiff and the judgment shall be for the defendant, as here, “[t]he judgment * * * shall be against the plaintiff and his sureties for the return of property taken, or that they pay the value so assessed, in the discretion of the defendant, or the value of the possession of the same, in case a return cannot be had, * * * and for the damages assessed and costs of suit. * * * ” (Emphasis supplied.) This section further provides that the defendant shall not be required to make his election between return of the property and its assessed value until it is delivered to the officer and defendant has notice thereof. But the next section, § 533.440, recognizes and anticipates that plaintiff may not have the property to produce or deliver and provides what shall occur'in that event. It provides that “[i]f such property shall not be produced and delivered to the officer [as required by § 533.430] within ten days after execution issued, the defendant may cause the assessed value thereof, and the damages and costs, to be levied of the property of the plaintiff’s sureties.” In my judgment, the principal opinion, aside from its holding with which I have disagreed, does no more or less than require the trial court and the parties to comply with these two sections of the statutes.
I do not want to be understood as saying that I would hold that the party in possession of replevined property may sell or may not sell it before final judgment. I would not hold either way, believing that it is unnecessary that we do so. There may be situations where the only practical and reasonable answer is that he must sell it immediately.1 But if he does, he may not do so with impunity or furnish good title to his vendee, should he not prevail in re-plevin. In addition to the remedies afforded him by the statutes, “ * * * the winning party may still follow the property, if it can be found, and recover it, notwithstanding he has received its assessed value * * *.” Mohr v. Langan, 162 Mo. 474, 63 S.W. 409, 413 (1901). He is also liable to the winning party as for conversion of the chattels. Mohr v. Langan, supra; Auffenberg v. Hafley, 457 S.W.2d 929, 937 (Mo.App.1970).
Furthermore, to hold that the mortgagee may not sell the property without notice to the mortgagor flies in the face of the provisions of the mortgage involved in this suit, that in case of default the mortgagee may “ * * * without notice * * * take [the property] * * * and may resell the same at public or private sale.” (Emphasis supplied.) It is common knowledge that this or a similar provision is in most instruments securing the unpaid balance of the purchase price of chattels we now deem necessary to our comfort. I do not know what impact our decision today would have on the sale of this type of commercial paper in this state, but I suspect it could, temporarily at least, bring it to a screeching halt. Aside from these misgivings, I have stronger misgivings about whether we may, or should, thus meddle with the contractual rights and obligations of the parties.
. For example: (1) He could not be expected to hold in the summer very long a truckload of cabbages. (2) He could not be expected to hold chattels the market value of which was reasonably expected to take a drastic drop.