Edmonston v. Wayne , 62 Mo. App. 515 ( 1895 )

Smith, P. J.

This is an action of replevin to recover seven head of horses. In its essential facts it is not to be distinguished from Stone v. Kelley, 59 Mo. App. 214, decided by us at the last term. There, as here, after the recording of the mortgage, the mortgagor, who had remained in the actual possession of the horses covered by the mortgage, placed them in the keeping of another to be boarded, and failed to pay the board bill so created.

And the question was there, as here, whether the lien of keeper for the board bill took precedence over the prior chattel mortgage; and, after quite a thorough consideration of the principles and authorities applicable to the case, it was ruled that there was no such precedence. The ruling in that case must dominate this.

But the defendant makes a further and additional point in the present case, which we will now notice.

It indisputably appears that, some time after the execution of the mortgage, the mortgagors, without the consent of the mortgagees, sold and made way with the mortgaged property — not including, however, the horses — and thereby greatly curtailed and lessened the mortgagee’s security. Thereupon, Mrs. Pickett, who was the wife of one of the mortgagors and the mother of the other, together with two more persons, in consideration that the mortgagees would extend the time of the payment of the note, agreed to and did sign their names to said note as sureties thereon; and this without the consent of the mortgagors. The defendant contends that this alteration in the note rendered the mortgage, which is the foundation of the title of the mortgagee, void and of no effect.

It is not perceived, nor is it so pretended, that there was any fraud attaching to the transaction of altering the note, or that the mortgagors were in any way harmed thereby. It has been decided that the alteration of a note not fraudulently made, though it may destroy the written evidence of the debt, does not affect the mortgage executed to secure the note thus altered. Clough v. Seay, 49 Iowa, 111; Crooker v. Holmes, 65 Maine, 195. And, further, that a mortgage alone, •without the production of the note secured by it, is evidence of title and the mortgage debt. Smith v. Johns, 3 Gray, 517; Powers v. Patton, 71 Maine, 583.

The mortgagee’s debt for which the mortgage was given remained unsatisfied. It was sufficiently evidenced by the mortgage itself. The additional names added to the note would doubtless have the effect to destroy the note, as an evidence of the debt, but not so as to the mortgage, which still remained to evidence the mortgage title and debt. It results that both of the defendant’s defenses must fail. The judgment, which was for the defendant, will be reversed and the cause remanded, with directions to the circuit court to give judgment for the plaintiffs.

All concur.