Banking House v. Brooks , 52 Mo. App. 364 ( 1893 )

Ellison, J.

— Young Beougher executed a chattel mortgage on a black mare to plaintiff. He and old Beougher afterwards jointly executed a chattel mortgage to defendant. Defendant got possession of the mare and sold her under his mortgage, and plaintiff has now sued him in conversion. The trial court instructed that there was no evidence tending to show any right, title or interest in the mare in young Beougher, and on this ground the finding should be for defendant. Plaintiff appeals.

There was no affirmative testimony that the mare was owned by either of the Beoughers. There was evidence, however, tending to show that when the young man gave the mortgage he was in possession off the mare, and that defendant recognized this mortgage as a prior mortgage to his; that in taking his he had it executed by loth the old and young man. In this connection defendant testified that when he took his mortgage he did not know who owned the mare. “I heard them talking among themselves that one owned this, and another owned that, and I told them they had all better sign the mortgage.” .It further appeared that he admitted plaintiff’s prior mortgage, and again that he sold subject to it. Where one is in possession of personal property and exercising acts of ownership by mortgaging it, it is evidence, nothing else appearing, from which you may legitimately infer that he is the owner. Estes v. Springer, 47 Mo. App. 99. If on a trial it should be believed to be a fact that the young man did not own the mare, when he gave the mortgage, plaintiff, of course, would have no case.

In regard to the conversion, the evidence tended to show that defendant refused to give up the mare except at the end of a suit in replevin adverse to him. This was sufficient to make out a case of conversion. It was an act inconsistent with plaintiff’s right. And, notwithstanding he asserted at the sale that he was selling subject to plaintiff’s mortgage and recognized such mortgage, yet he wilfully refused to turn over the property. He spoke in recognition of it, but both spoke and acted in antagonism to it. LaFayette Co. Bank v. Metcalf, 40 Mo. App. 494, 501. The judgment is reversed, and the cause remanded.

All concur.