Mead v. Maberry

Ellison, J. Plaintiff instituted an action of replevin to recover the possession of two mules and lost his case in 4he circuit court. The facts necessary to state to an understanding of our decision are these: In 1887, one Clifford was the owner of the mules and in that year gave to defendant a chattel mortgage on them to secure the payment of a note for about $114. The mortgage was not recorded until about five years thereafter, and the possession was left with Clifford. Nearly a year after executing the chattel mortgage to defendant and four years before it was recorded, Clifford sold them to plaintiff, who knew of the mortgage and who made his purchase subject to the mortgage, the amount of the mortgage being a part of the purchase price of the mules, plaintiff in — 561 — fact assuming the payment of the mortgage debt. The remainder of the purchase price, amounting to $40, was paid by. plaintiff, by direction of Clifford, to one of Clifford’s creditors. Plaintiff’s contention .here is that, notwithstanding he had notice of defendant’s chattel mortgage, when he purchased the mules, the mortgage is void as to him, since he is no party to the mortgage. The statute on which plaintiff bases his contention is as follows : “No mortgage or deed of trust of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and retained by the mortgagee or trustee, or- cestui que trust, or unless the mortgage or deed of trust 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.” R. S. 1889, sec. 5176. If the fact, that plaintiff purchased with knowledge of the unrecorded mortgage, stood alone, we should readily answer that it was void as to him; since the rulings of the supreme court and each of the courts of appeals has been that, if the mortgage was not recorded, it was invalid as to purchasers, and creditors, even though they had notice of its existence. Bryson v. Penix, 18 Mo. 13; Bevans v. Bolton, 31 Mo. 437; Collins v. Wilhoit, 35 Mo. App. 585; s. c., 108 Mo. 451; Hughes v. Menefee, 29 Mo. App. 192. But there are additional facts here, which, in our opinion, wholly control the application of the statute* Those facts are that plaintiff purchased the property in recognition of the mortgage and not in antagonism to it. He agreed to pay the mortgage debt as part of — 562 — the consideration of his purchase of the mules. If he now be allowed to disavow the validity of the mortgage, he would repudiate his own obligation. When a party buys property subject to a mortgage, and in recognition of the mortgage he merely buys the equity of redemption in the property; especially is this so, where he agrees to pay the mortgage as a. part of the purchase price. It is true that plaintiff is not a party to the. mortgage, and the statute reads that the mortgage shall be invalid as to “any other person than the parties thereto.” But there is nothing in the statute to hinder any person not a party to the mortgage from treating it as valid and contracting that, as to him, it shall be valid. Where is there anything in the enactment itself, or in the policy of the enactment, to prevent any one from contracting, on sufficient consideration, that an unrecorded mortgage shall be considered by him as a valid incumbrance? The statute makes the mortgage invalid as to any purchaser, even though he knows of it, if such purchaser wishes to ignore the mortgage, but the statute does not compel such purchaser to ignore it. The words, “any other person,” must not be taken with too great literalness. It has been held in this state that they do not apply to trespassers or wrongdoers. Johnson v. Jeffries, 30 Mo. 423. So the widow or heir of the mortgagor has been held not to be a “third person,” who could claim the mortgage to be invalid. Summer v. McKee, 89 Ill. 127. The statutes of Massachusetts and New York are, in the respect here considered, like our own. In each of these states, the exact question involved here has been decided as we here decide. Howard v. Chase, 104 Mass. 249; Tuite v. Stevens, 98 Mass. 305; Pecker v. Silsby, 123 Mass. 108; Eaton v. Tuson, 145 Mass. 218; Potter v. Trader’s Bank, 23 N. Y. Supplement, — 563 — 1079; Porter v. Parmley, 52 N. Y. 185; Horton v. Davis, 26 N. Y. 497. Though the Michigan statute contains a qualification of good faith, on the part of the subsequent purchaser, not found in ours, yet the inclinátion of the supreme court on a question like the one at bar, is clearly seen from the cases of Kellogg v. Secord, 42 Mich. 318; and Dwight v. Lumber Co., 69 Mich. 127. It is apparent from the foregoing that we think the authorities cited by plaintiff not applicable to the facts of this case and that, therefore, the court did not err in refusing plaintiff ’s instructions. There was evidence tending to support the view advanced by defendant as to what plaintiff’s contract was concerning his purchase from Clifford and we affirm the judgment. All concur.