Randol v. Buchanan

Biggs, J.

—The plaintiff sued the defendant in replevin for the possession of a yoke of oxen. The case originated before a justice of the peace, where the defendant had judgment. The plaintiff appealed to the circuit court, where, on a trial de novo before the court, a jury having been waived, the finding and judgment were in his favor. The defendant in turn has appealed to this court, and complains that the statement is fatally defective; that the plaintiff’s instructions are erroneous, and inconsistent with those given by the court at the instance of the defendant; that the instructions asked by the defendant and refused by the court should have been given; and that the judgment is unsupported by the evidence.

The statement fails to allege ownership, but it does allege that the plaintiff was lawfully entitled to the possession of the property. This is all the statute requires, when the action is instituted before a justice of the peace. Revised Statutes, 1889, section 6169.

*447 The plaintiff claimed the cattle under a chattel mortgage. The defendant asserted ownership by mesne transfers of the animals from plaintiff’s mortgagor. The defendant’s evidence tended to prove that by the oral consent of the plaintiff, and after condition broken, the mortgagor traded the cattle to a third party for some corn, and that the defendant, without the knowledge of plaintiff’s claim, purchased them from the third party. On this branch of the case the court, at the instance of the plaintiff, instructed the jury, in substance, that the title to the cattle did not pass by the attempted sale of them by the mortgagor, unless the sale was made with the written consent of the plaintiff, whereas by the third instruction given for the defendant the jurors were told that a sale by the mortgagor with the oral consent of the mortgagee would pass the title. The instructions flatly contradict each other.

The plaintiff’s instruction is supposed to be authorized by section 3570'of the Eevised Statutes of 1889, which makes it a misdemeanor for a mortgagor to sell the mortgaged property without the written consent of the mortgagee. This is á misconception of the purpose and scope of the statute. It does not declare such a sale void or prohibit it, but it merely provides that in such a case the mortgagor may be punished. The intention of the legislature was to protect the mortgagee against the fraudulent acts of the mortgagor in removing and selling the property at distant points, and also to protect innocent third parties who might, under such circumstances, be inclined to purchase it. Lafayette Bank v. Metcalf 29 Mo. App. 384 . If the mortgagor sells the chattels before condition broken, the title passes subject to the mortgage, even though he had no authority, either oral or written, to sell. State to use v. Carroll, 24 Mo. App. 358 . In doing so, *448 however, he would render himself liable to prosecution. But, after condition broken, the title to the property vests in the mortgagee, and the mortgagor’s right to redeem becomes a bare equity. He remains in possession as mortgagor, but has no power to affect the title, except by authority of the owner. But we can conceive of no valid reason why he—like any other agent in possession of personal property—may not sell it with the oral consent of the mortgagee and thereby pass the title, although his written consent would seem necessary to prevent a prosecution.

The last assignment must likewise be sustained. In the mortgage under which plaintiff claims, the oxen are described as “one line-back steer about seven years old; one speckled steer, blind, about seven years old, known as the Grammer cattle.” The instrument does not attempt to locate them; nor did the plaintiff undertake to show aliunde that the cattle in controversy answered the description in the mortgage, and were known as “the Grammer cattle.” In this way only could the description have been made good as against the defendant, who claims to be an innocent purchaser for value.

It follows that the judgment of the circuit court

must be reversed, and the cause remanded.

All the judges concur.