Long v. Gorman

BLAND, P. J. Evidence was introduced by the defendant tending to prove that Mayer took the deed of trust with an understanding that his mortgage on the cattle should be subjected to the mortgages given by J. W. Crawford to the defendant bank. This under [50] standing, if made, was not incorporated in the deed of trust and there is no evidence that the plaintiff was informed of this agreement or had any knowledge of it, and it being.admitted, the notes to Mayer were negotiable and were transferred to the plaintiff before maturity, the agreement that the Mayer deed of trust as to the cattle should be subject to the mortgages held by the defendant bank is eliminated from the case and appellants make no point on the agreement. Appellants contend that, as to the cattle, the deed of trust is neither a mortgage nor a pledge; that there ai'e no apt words in the instrument selling or conveying the cattle to Mayer. By its answer the appellants tacitly admitted that the deed of trust was effectual to mortgage the cattle to Mayer and seek to avoid the priority of that mortgage by the allegation that Mayer took the cattle subject to prior mortgages of the defendant. The cause was tried on this theory and will be disposed of here on the same theory. The only question remaining for consideration is whether or not the record of the deed of trust on the land records of mortgages for Audrain county was constructive notice of the mortgage of the cattle described in the deed of trust. This question is answered in the affirmative by the decision of this court in the case of Jennings v. Spark-man, 39 Mo. App. 663, where it was ruled that a deed of trust conveying both an interest in land, a lot of mules and other personal property, was properly recorded in the series of books kept for recording instruments affecting real estate, and that when so recorded it imparted constructive notice to the world that both the interest in the land and the personal property were conveyed by the instrument. The Kansas City Court of Appeals in Hume Bank v. Hartsock, 56 Mo. App. 291, approvingly cited the Jennings case. This ruling seems to us to set a trap to catch even the diligent searcher for recorded mortgages on per [51] sonal property, for who would think to look to the records wherein instruments affecting lands are required to be recorded for mortgages on personal property in view of the fact that the statute requires chattel mortgages to be recorded in a separate series of books? But we are not prepared to say that this court, in the Jennings case, misconstrued the statutes pertaining to the recording of these instruments, but are prepared to say that the Legislature ought to throw the trap by providing for the recording of these double-barreled mort-' gages affecting both real and personal property in both series of books, or by requiring the recorder to make an index that would direct the searcher to the book and place where they are recorded. The learned circuit judge followed the ruling in the Jennings case, and we affirm the judgment. Barclay and Goode, JJ., concur.