Young v. Hutchinson , 62 Mo. App. 512 ( 1895 )

Ellison, J.

This action is replevin, in which plaintiff recovered below. The defendant is a constable and claimed to hold the possession of the property (a small stock of goods) by virtue of an execution in his hands in favor of the creditors of Gr. B. and A. E. Young, brothers of the plaintiff.

The plaintiff claimed the' goods under a chattel mortgage executed to him by his brothers aforesaid. The principal question tried was, whether this mortgage was fraudulent, as to the creditors of Gr. B. and A. E. Young. There is evidence tending to establish that it was fraudulent. And so was there evidence sufficient to support a finding that it was, not fraudulent. We do not understand that defendant disputed this at the trial, since there was no demurrer to the evidence and the cause was submitted to the jury under general instructions. It is, however, insisted that the instructions are improper.. An examination has satisfied us that the objections made are not well grounded. The instructions all bear upon the question of the alleged fraudulent character of the mortgage, and, considered in this respect, those given for plaintiff are correct. No question as to any of the goods 'not covered by the mortgage was submitted to the jury. Nor was any offer of such question made by defendant. We, therefore, think the objection that plaintiff’s instruction number 2 was too broad can not be urged. The only question submitted to the jury by. either side, relates to whether the mortgage was valid or invalid, and we will not consider here what was not submitted at the trial. Instruction number 8 given for defendant is inconsistent with some of the instructions given for plaintiff, in that it required the jury to find that there had been an open, notorious and unequivocal change of possession of the property. The mortgage having been duly recorded, such change of possession was unnecessary. The instruction, then, contained an error in defendant’s favor, in requiring the jury to find more than was necessary. Defendant can not complain of this. While it is true, as stated by defendant’s counsel, that the instruction should be consistent; yet it is quite apparent that an appellant should not be permitted to complain of an error in his favor, which he invited, such error having caused the inconsistency. The property was described in the mortgage as being, at the date of the mortgage, in the residence of plaintiff, the mortgagee, in the town of Hardin, it being the remnant of a stock saved from a fire which occurred a few days previous. The mortgage contained a provision that the goods might be removed to a “suitable building in Hardin.” We see nothing illegal or improper in this.

An examination of the.entire record has failed to discover to us any reversible error, and the judgment will, therefore, be affirmed.

All concur.