Meyer Bros. v. Self

Ellison, J.

This action was brought by attachment wherein a stock of drugs was attached as the property of defendant Self. Interpleader claimed the property under a chattel mortgage executed to him by Self and a trial of his title resulted in his favor. Plaintiff appeals.

We pass over the objection made by plaintiff as to the sufficiency of the description in the mortgage with the remark that the description is ample to support the conveyance.

^aJeEfShire creditor’s" right,

The mortgage was executed in January, 3893, and recorded in May of that year. Plaintiff’s claim against Self did not arise until long after the recording and consequently we rule that withholding' the mortgage from record for the time stated, did not affect its validity as against this plaintiff, since its action in dealing with Self could not have been founded on the absence of the mortgage from the record. If during the time the mortgage was withheld from record plaintiff, being misled, had permitted Self to become indebted to it, then the question would have been similar to Williams v. Kirk, 68 Mo. App. 462, and that of Barton v. Sitlington, 128 Mo. 174. But such was not the case.

Interpleader seems to have permitted Self to remain in possession from the time the mortgage was given until November 30,1896, a short while before the attachment was levied, when he took possession, as we must assume, since the finding in his favor.

appellate and findIng-iocnom piaim.'

On December 16 the attachment was levied and interpleader giving a forthcoming bond remained in possession, when on December 21, 1896, he sold the goods under the mortgage and purchased them at the sale. It was while Self remamec* lü possession by interpleader's permission, that plaintiff’s account was made with Self. Plaintiff contends that inter-pleader permitted Self to thus remain in possession and deal with the goods as his own, that it deceived plaintiff and caused the credit to be extended, notwithstanding the mortgage was recorded, and that the mortgage thereby became fraudulent in fact. We are relieved from expressing any opinion on the soundness of this contention as a legal proposition, since the court at the instance of plaintiff embodied the proposition in instruction number 5 and yet found the fact against plaintiff, of which he has now no right to complain.

Plaintiff further contends that the possession taken by interpleader was not such open and notorious possession as to be effective under the statute. This was also submitted by instructions and passed upon on the facts.

"Yidrace-.'moitgagee-s estop-

But it is further claimed by plaintiff that- inter-pleader by giving the delivery bond on the attachment being levied is estopped now to assert that the goods were his and not Self’s. This point is also not well taken from the fact that the court gaye a£ plaintiff’s instance the following intruction: “The court declares the law to be that if at the time of the levy of the writ of attachment in this case the interpleader did not assert any claims or right to the attached property but gave a forthcoming bond for the same; and that the sheriff by reason of interpleader’s failure to make or assert any claim to such property refrained from levying upon other property of the defendant not embraced in such mortgage then the verdict must be for the plaintiff in attachment.”

The court must have found there was no ground to charge interpleader ’with deceiving the sheriff, or that he conceale'd his claim to them from the sheriff. The contrary clearly appears. The whole case shows that there was no endeavor on the part of interpleader to conceal his ownership. Idis claim was not only of record but was well known. We think the court’s finding is amply supported by the case of Petring v. Chrisler, 90 Mo. 659.

After an examination of the record and points made against the judgment we find no reason justifying us in disturbing it and hence order its affirmance.

All concur.