Swinney v. Gouty

BIGGS, J. Thi's is an action for the conversion of some com. The corn grew upon a farm owned by D. S. Dorrell and was sold by him to the defendant, who converted it to his own use. The plaintiff claimed to own the corn as the assignee of the Swinney Banking Company. The alleged title of the banking company is based on a mortgage executed by Dorrell to it, in which Dorrell conveyed to the banking company “one hundred acres of corn on the west half of lots 6 and 7 and the east half of lot 7 of the northwest quarter of section 6,” etc., to secure a debt of $690. The mortgage was dated on the sixteenth of April, 1898. The defendant admitted that he received the corn from Dorrell and that it grew on the above' described land in the year 1898. As defenses to the action he averred that at the time the mortgage was executed the com crop was not planted, and further that, the com received by him was not included in that attempted to be conveyed by Dorrell, but it was planted and cultivated by Charles Dorrell, and by him sold to D. S. Dorrell, who in turn sold it to the defendant. The cause was submitted to the court without a jury. There was evidence tending to prove and to disprove the alleged defenses. The defendant asked the court to declare thait if the mortgage was given before the com was planted that the finding should be for the defendant. The court refused the instruction. The judgment was for the plaintiff for the value of the com, and the defendant has appealed. [552] It may be conceded that a chattel mortgage on property not in esse will not convey the legal title to. the property when it comes into existence, bnt an equitable lien only attaches to it, which lien may be enforced by equitable proceedings against the mortgagor or these claiming title to the property under him with actual notice of the mortgage. France v. Thomas, 86 Mo. 80; Rutherford v. Stewart, 79 Mo. 216; Scudder v. Bailey, 66 Mo. App. 40. These cases hold that in such a case replevin will not lie, but if possession is denied resort must be had to a court of equity. This, however, was doubted by Judge Black in Keating v. Hannenkamp, 100 Mo. 161. The question, however, was not necessary to the decision, and the former rulings of the court were not disturbed. So unquestionably a mortgage on a crop of corn to be thereafter planted only has the effect of creating an equitable lien when the crop begins to grow, and it has been so held by the Kansas City Court of Appeals in Littleford v. Lemley, 75 Mo. App. 511. But it does not follow in the present case that the plaintiff as the alleged assignee of the mortgage debt can not maintain an action against the defendant for the conversion of the corn, provided the defendant bought the com with actual notice of the mortgage. To maintain an action for conversion it is not necessary (as in replevin) that the legal title to the property should be vested in the. plaintiff. He may recover if he has the right of property either legal or equitable, or if he has the right to the immediate possession of it. Parker v. Rodes, 79 Mo. 88. Hence it follows that the circuit court did right in refusing the instruction asked by the defendant. Whether the Swinney Banking Company was a corporation or a co-partnership, does not clearly appear. But the fair inference is that the company was not incorporated. There were several shareholders or owners of the bank. The plaintiff was one of them. It appears from the evidence that [553] after the alleged conversion of the com a receiver was appointed for the banking company, and upon a final report of the receiver the court ordered him to re-assign to the shareholders or partners the remaining assets and choses in action in his hands. There was some evidence that the claim for the conversion of the corn belonged to the assets thus ordered1 to- be re-assigned. It is now insisted by the defendant that there is no evidence that the other shareholders assigned to plaintiff their interest in the claim. It may be conceded that there is no such proof. But the objection only presents a question of defect of parties plaintiffs -which should have been taken advantage of either by answer or demurrer, and having failed in this the defendant will be considered as having waived the objection. Anderson v. McPike, 41 Mo. App. 328. There is substantial evidence that the defendant had notice of the mortgage, therefore the judgment can not be disturbed on that ground. Neither can the judgment be reversed for the alleged reason that the plaintiff failed to aver and prove a demand for the return of the property, for the reason that the corn had been consumed by defendant’s stock long prior to the institution of the suit. Smith v. Kennett, 18 Mo. 154. The judgment will be affirmed. All concur.