Connersville Buggy Co. v. Lowry

BROADDUS, J. The original proceeding was by attachment against defendant Lowry in which certain personal property was attached as the property of said defendant then in the hands of the appellant Smith, who filed an interplea in which he claimed that' he was the owner of such property. At the conclusion of the trial the court instructed the jury to find for the plaintiff company. The interpleader appealed. The facts were, that on the sixth day of March, 1900, the interpleader acknowledged a chattel mortgage to secure a note payable to defendant Lowry in the sum of $800, payable in eight monthly installments of $100 each, bearing six per cent interest from date. One of the conditions of said mortgage was that in default of payment of said note, or in default of payment of any of said installments when due, then the whole became due and the said Lowry or his successor was authorized to enter upon the premises where said property might be found, and take possession of and sell the same, and apply the proceeds to the payment of the note. Notwithstanding said mortgage was dated the sixth day of March it was in fact of the date of the eighteenth of January, 1900, as was also said note. The interpleader introduced evidence tending to show that the note by agreement was extended on February 4, 1900, to May 15, 1901. He also offered evi [190] dence to show that said note had been transferred to one Shellenberger, which upon obj ection by the plaintiff the court excluded. It was held in Bowens v. Benson, 57 Mo. 26, that an agreement for the extension of the time for the payment of the debt did not postpone the mortgagee’s right to the possession of the mortgaged property for failure to pay the debt at the time originally agreed on. See also Baldridge v. Dawson, 39 Mo. App. 527. It therefore follows that as the mortgagee was entitled to the possession of the property under the terms of the mortgage, the debt being due and unpaid, the interpleader did not have the right to the immediate and exclusive possession thereof. It is well established law that in order to recover the possession of personal property, the claimant must show that he has general or special rights in such property, and the right to the immediate and exclusive possession thereof. Hardware Co. v. Hardware Co., 75 Mo. App. 518; Upham & Cordon v. Allen, 73 Mo. App. 224; Bank v. Fisher, 55 Mo. App. 51. The action of the court in excluding the evidence of the interpleader offering to show that one Shellenberger was the owner of the note, is upheld: because it was immaterial. The interpleader could only recover upon the strength of his own claim and not upon the weakness of that of his adversary. Car Co. v. Barnard, 139 Mo. 142; Graham Paper Co. v. Morton B. Crowther, decided by this court but not yet reported. The interpleader having failed to show that he had either a general or special property right in the articles in controversy, and the right to the immediate and exclusive possession thereof, the court very properly instructed the jury to find for the attaching plaintiff. The cause is affirmed. All concur.