State ex rel. Carpenter v. O'Neill

Ellison, J. Statement. — The plaintiff sued defendants (who are the sheriff and his sureties), the suit being on the official bond. The judgment in the cir- . , cuit court was for plaintiff. It appears that the sheriff levied an execution on a lot of personal property as the property of one Yan Yoorhis, the defendant in the execution, and sold the same. Plaintiff claims the property as mortgagee, Yan Yoorhis having, as plaintiff claims, made to him a chattel mortgage on the property to secure a note given for rent of a farm and due in three years. The mortgage was executed to “Luther A. Carpenter, agent.” The evidence showed Luther A. Carpenter to have been the agent of plaintiff, the latter being Luther’s father and residing in another county. Pc^áfa¿dpag¿m: tdmoítgageat" Defendants’ first objection to the judgment is that the suit should have been brought in the name of Luther A. Carpenter since he appears as the grantee in the mortgage. In our view the point is not well taken. Where a chattel mortgage is given to an agent, the principal, though undisclosed may assert his rights as if named in the mortgage. The relation of principal being shown by parol. [137] Chattel mort««>erd:delivery: [136] 2. It is next objected that there was no delivery of the mortgage to plaintiff or his agent. The facts were [137] that plaintiff’s agent customarily left his . . in(livic*-ual mortgages and deeds with the recorder, and that he usually did not have them in actual possession unless when he needed them for some purpose, in which event he would go to the recorder and get them; that in this instance he, not being well, left the whole matter in the hands of Yan Yoorhis, the mortgagor, and directed him to execute the note and mortgage and leave it with the recorder for record; that the mortgagor, in a day or two, did execute it, left it with the recorder and afterward told him he had done so. This we regard as a sufficient delivery, as will be made apparent by the cases of Cravens v. Rossiter, 116 Mo. 338, and Fischer Leaf Co. v. Whipple, 51 Mo. App. 181. _ _ rat.fi cation: intervemng rights. 3. But it appears that the lease on the farm was for three years, the annual rent of $300 being due annually, and that plaintiff’s agent Luther, directed the mortgagor to make out the mortgage securing the first year’s rent and due in one year, whereas he made it out to be due in three years; and that Luther never knew that it had not been made as he directed, until after the levy was made by the sheriff and he came to make his claim under it. It was not a mortgage therefore that plaintiff was bound to accept, he had a right to reject it whenever he should find it differed materially from what he authorized. He could, of course, exercise the right to ratify the mortgagor’s act in delivering to the recorder for him a different mortgage from the one agreed upon and the act of ratification would make it a valid mortgage, except as to intervening rights. The ratification must have taken. place before the levy of the execution. The levy of the execution was an intervening right and cut out the subsequent act of plaintiff in adopting the mortgage as made and claiming under [138] it. Fischer Leaf Co. v. Whipple, supra. At the time the levy was made there was no mortgage in existence binding upon plaintiff. It became binding upon plaintiff and became the measure of his rights against the mortgagor when he ratified it by adopting it as he found it to be. But, as before stated, that was after the rights of the execution creditor had attached. It follows that the judgment should be reversed. All concur.