Scott v. Vogel-Boul Soda Water Co. ( 1908 )

BLAND, P. J.

(after stating the facts). — Defendant contends that the original petition failed to state a cause of action, in that it merely stated that plaintiffs are entitled to the possession of the property but did not state that they were the owners of the property, or that they had any special interest in it. The original petition may have been subject to this objection but the cause was tried on a second amended petition, to the filing of which no objections were made. The amended petition stated, in substance, that plaintiffs were entitled to the possession of the property under and by virtue of the chattel deed of trust, which was described in and filed with the petition, and alleged the breach of the condition to keep the value of the groceries, etc., up to $700. This amended petition pleads the chattel deed of trust and a breach of the condition therein which entitled plaintiff Reed to possession of the property. On the breach of the condition to keep the stock up to the value of $700, Reed, as trustee, had an unquestionable right to possession of the property, as by the breach the title became vested in him. [Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Ottumwa National Bank v. Totten, 94 Mo. App. 596.] Defendant contends that Reed only, as trustee, had power to foreclose the deed of trust. This is true, and Reed was the only necessary party plaintiff to the action and he alone could maintain it for the recovery of the property. [Myers v. Hale, 17 Mo. App. 204; Steckman v. Gault State Bank, 105 S. W. 674.] Defendant objected to the introduction of the chattel deed of trust. The petition alleged joint ownership of the property in Scott and Reed. The deed of trust was evidence of ownership in Reed only. Defendant objected to the. introduction of the deed in evidence, on the ground that it did not tend to prove the allegation of the petition in respect to the title of the property. The objection should have been sustained for the reason stated. Reed did not make or join in the affidavit for the writ of replevin, neither did he execute the replevin bond. Scott made the affidavit and signed the bond as principal, and the sheriff's return shows he took the property from defendant's possession and delivered it to Scott. In the entire proceeding Reed was treated as only a nominal party plaintiff and Scott as the real party in interest, so there was not only a misjoinder of parties plaintiff but the suit was in fact prosecuted by Scott, who had no legal capacity to sue, wherefore the judgment is reversed and the cause remanded.

All concur.