Miller v. Whitson

Fagg, Judge,

delivered the opinion of the court.

The transcript of this record and proceedings in this case are of such a character as not to present very clearly the questions upon which the opinion of the court may be required.

We do not feel authorized to go back of the amended petition filed in the month of May, 1864. Many errors are complained of in the progress of the case up to that time. The defendants, however, filed their answer to this amended petition, and the case was tried upon the issues thus presented. The suit was brought in Franklin county and removed by change of venue to the St. Louis Circuit Court, where there was a trial had which resulted in a verdict and judgment for the plaintiff, to reverse which the defendants have sued out their writ of error.

The plaintiff Miller claimed the property sued for (being altogether personalty) by virtue of a mortgage executed in his favor by John W. Miller.

The defendant Whitson, being an execution creditor of the mortgagor, directed the sheriff of Franklin county to levy upon this property after the date of the filing of the mortgage for record, which was done. The other defendant, Maupin, became the purchaser of the same property at the sheriff’s sale.

The defendant having put in issue simply the right of the plaintiff to the property, and the trial having proceeded mainly upon the idea that the only question to be determined by the jury was whether the claim set up in the petition was *101 rightful or not, we proceed to inquire whether any of the objections urged by the plaintiffs in error are well taken.

The instructions given both for the plaintiffs and defendants are in the main unexceptionable. Four instructions asked by the defendants, however, were refused and exceptions duly taken. These relate to the questions, first, of the measure of damages which ought to have been assessed by the jury in favor of the defendants in the event of a verdict for them; second, as to the presumption of fraud arising from the possession of the mortgaged property by the mortgagor ; and third, to the question of notice to the defendant Maupin.

1. It is well settled by the decisions of this court that the measure of damages in such cases, when the finding of the jury is for the defendant, is the value of 'the property when taken, with legal interest thereon to time of trial. The use of the property, therefore, should constitute no part of the damages, and the instruction upon that point was clearly wrong.

The instructions upon the other two points may be examined together, as they both depend upon whether the mortgage was recorded or not. Section 8 of the “Act concerning fraudulent conveyances” (R. C. 1855, p. 802) received such a construction by this court in the case of Howell v. Bell, 29 Mo. 135 , as to settle all controversy upon this question. It is provided by that section that where possession does not accompany a deed of trust or mortgage of personal property, the deed must be recorded to make it valid as to all persons other than the parties thereto. In the case referred to, it was said by Judge Napton, in delivering the opinion of the court, that “ this section is a legislative interpretation of the first section, and amounts to a declaration •that retention of possession by the grantor in a deed of trust or mortgage is not a trust in the grantor within the first section of the act.” If the mortgage under which the plaintiff claimed the property was recorded, then the law presumes notice of the conveyance as to all persons whatsoever, and *102 the possession of the property by the mortgagor could deceive no one as to the question of its ownership. This conveyance is preserved in the bill of exceptions and shows no irregularity upon its face. It seems to have been duly acknowledged and filed for record in the office of the recorder of land titles for the county of Franklin, March 13, 1861. The sale occurred on the second day of April following. The section just considered directs further, that conveyances of this character shall be “ acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of lands are by law directed to be acknowledged or proved and recorded.”

Section 41 of the “Act'regulating conveyances” (E. C. 1855, p. 364) is as follows: “ Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from, the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed in law and equity to pm chase with notice.”

It would seem necessarily to follow — although not expressly declared by the statute — that at the time at which notice of these conveyances of personalty would be deemed to be imparted to the whole world must also date from the filing of the instrument with the recorder.

Some objection was made in the case to the certificate of the recorder, but it sufficiently appeared from the endorsements made by him that it was filed at the time heretofore stated. The failure of the officer to certify the fact under his seal of office, and with all the formality required by law, could make but little difference as to the question of notice. His certificate of the date of filing showed it to be prior to the sale, and the defendant Maupin must be considered as a purchaser with notice. The instructions upon the last two points considered were therefore erroneous, and the court properly refused them.

The last point for consideration is the application made by defendants for a new trial upon the ground of newly dis *103 covered evidence. Both of the defendants filed affidavits substantially to the same effect. Material and competent evidence was claimed to have been discovered soon after the the trial, accompanied by a statement tending to show a sufficient degree of diligence on the part of each of the parties. It was also stated that there was not sufficient time to procure the affidavits of the witnesses themselves before the time fixed for the hearing of the motion. The record does not show the date upon which the court finally passed upon the motion, and we are therefore not in a position to determine whether its action in this particular was wrong or not." The proper inference to be drawn is that this portion of the application was not sustained by the facts, and that the diligence of the parties previous to the trial was not sufficient to enable them to derive any benefit from the discovery.

These applications, almost without an exception, are regarded by the courts with suspicion. A pai'ty should be held to the strictest accountability for a failure to ferret out previous to the trial the proofs necessary to sustain his case. As to the facts which it is alleged could be proved by the testimony of Judge Owens, it is enough to say that it was not competent to prove them in that way. If the records of the court were in any manner deficient, the deficiency might have been supplied by taking the proper steps. The testimony of the other witnesses mentioned could only affect the question of the fraudulent intent of the parties to the mortgage, and was simply cumulative in its character. The testimony of several witnesses in the course of the trial presented facts tending to impeach the conveyance to the plaintiff and to affect him with notice of the fraudulent intent of the grantor. The instructions of the court placed the whole matter before the jury in a light as strong as the circumstances would permit, and we will not undertake to say this newly discovered evidence, being merely cumulative upon that point, could have changed the result.

The other judges concurring, the judgment of the Circuit Court will be affirmed.