Maryville National Bank v. Snyder

ELLISON, J.

— This is an action of replevin for some blooded horses. Plaintiff claimed title through a chattel mortgage. Defendant is a constable and claimed to be in possession and to have a right to the possession by reason of a judgment rendered by a justice of the peace enforcing an agister’s lien. The verdict of the jury found that defendant had an interest in a mare called Isabella in the sum of $27 5 and in her colt in the sum of $100, with interest on both amounts, making a total of $384.40. Plaintiff appealed.

The facts and contentions of the parties to this controversy are somewhat complicated. Although the action is replevin, yet under our administration of the replevin law, the equities of the parties may be adjusted. Hickman v. Dill, 32 Mo. App. 509 ; Dilworth v. McKelvy, 30 Mo. 149 .

It appears that one Yehle was the owner of the animals and that Miller was the agister. That Miller’s claim was prior to plaintiff’s mortgage, and that Miller begun suit before a justice of the peace to enforce his lien for keeping .and caring for the mare and colt. That a judgment was rendered, an execution issued to defendant as constable and that he was about to sell when plaintiff brought this replevin. The defendant constable conceded that all the claim he had on the animals was under his writ. The judgment of the justice enforcing Miller’s lien was declared by instruction by the trial court to be void, and in consequence the defendant’s writ was void. It further appears that Yehle, the owner, and Miller; the agister, were in reality acting in harmony; that is, that the owner willingly surrendered the animals for the enforcement of Miller’s lien and *86 that he did not dispute the amount thereof, the judgment being by confession. Plaintiff goes so far in 'the brief as to charge collusion. But at all events, it is clear that while the defendant constable was officially holding the property under the writ, he was holding, after all, by reason of a bona ’fide agister’s lien. The evidence indisputably shows that the animals are subject to Miller’s lien and that it has priority over plaintiff’s mortgage. It must be remembered that Miller, or any one for him, has a right to the possession under the lien without a writ for its enforcement. The statute prohibits dispossession of the lienor. Sec. 6730, R. S. 1889.

Erom these considerations it is clear that although defendant has' no title to the animals, yet plaintiff can not recover on the weakness of his adversary’s title; he must prevail, if at all, by the strength of his own title. Kennedy v. Dodson, 44 Mo. App. 550 ; Moore v. Carr, 65 Mo. App. 64 . It is true that as against a stranger or trespasser seizing property in the peaceable possession of another that other can maintain replevin on his peaceable possession alone. Updyke v. Wheeler, 37 Mo. App. 680 ; Springfield Grocer Co. v. Shackleford, 56 Mo. App. 642 . But here, plaintiff was not in possession. He makes an affirmative move for possession by suing out a writ of replevin. In such case the question, primarily, is not how weak is the defendant’s claim but rather how strong is the plaintiff’s? We, therefore, hold the action of the trial court to be correct in permitting a finding for the lienor’s interest.

But it is claimed that in the charge for keeping the colt there was blended with the charge of keeping, a charge for services in curing it of a malformation, which sometimes disfigures or even renders colts worthless. The statute, section 6730, Revised Statutes 1889, reads: “Every person who shall keep, board or train any horse, mule or other ani *87 mal, shall, for the amount due therefor, have a lien on such animal,” etc. In our opinion, the terms of the statute justify a lien for the expense of curing an animal. The evidence shows that Yehle, the owner, authorized Miller to render this service and that he has no objection to the charge.

But even if such service be considered as beyond the terms of the statute, yet Miller, considered as a farrier or veterinary, would be entitled to a lien therefor at common law. Lord v. Jones, 24 Maine, 439; 2 Am. and Eng. Ency. of Law (2 Ed.), 13; 2 Kent. 635*; Story Bailment, sec. 440.

Since the circuit court in trying the cause eliminated several of the claims made by defendant, especially as to the aforesaid judgment before the justice .and some claims on other animals, we have not gone into a discussion of those matters. The judgment will be affirmed.

Smith, P. J., concurs; Gill, J., absent.