Imágenes de páginas

tions against the guardian of the ward personally, or against him as the representative of the estate. The principle announced in Montgomery County V. Gupton, supra, is clearly applicable to the case at bar. In that case the insane patient, Ellen Collins, had been furnished support and maintenance similar to the case at bar; subsequently an estate was discovered; she died, and the court sought, under the provisions of section 5557, Rev. St. 1889 (the same as section 3697, Rev. St. 1899), to recover against her estate for such support and maintenance. It was held that such action was not embraced within the provisions of the statute, and could not be maintained.

It may be, after the discovery of an estate of an insane patient being cared for by the county, and a guardian and curator having been appointed for such patient, some course might be pursued by the county or probate court in respect to such ward as would compel the guardian and curator to furnish its support and maintenance out of the estate in his hands; but we think it is clear that this action, under the provisions of the statute, cannot be maintained.

With these views, it results in the conclusion that the ac of the trial court in sus

1: Judgment should be affirmed,

and it is so or

dered. All concur.

appointment recovered and become possessed of certain real and personal estate of his ward. Upon this state of facts, is plaintiff entitled to recover? We have reached the conclusion that there could be no recovery. There is no contractual relation, either express or implied, between plaintiff and defendant, Hartman, or his ward.

The order of the county court of June 13, 1872, taking charge of Magdalena Miller as an indigent insane person, was in pursuance of the statute imposing the burden upon the counties of supporting their indigent insane, and the fact of furnishing support in pursuance of such order raises no implied promise to repay for such support. In Montgomery County v. Gupton, 139 Mo., loc. cit. 308, 39 S. W. 448, Brace, J., speaking for the court, thus disposed of this question: "It is well settled at common law that the provision made by law for the support of the poor is a charitable provision, from which no implication of a promise to repay arises, and moneys so expended cannot be recovered of the pauper, in the absence of fraud, without a special contract for repayment. Selectmen of Bennington v. McGennes, 1 D. Chipp. 44; Benson v. Hitchcock, Adm'r, 37 Vt. 567; Inhabitants of Deer-Isle v. Eaton, 12 Mass. 328; Inhabitants of Stow v. Sawyer, 3 Allen, 515; Charleston v. Hubbard, Adm'r, 9 N. H. 195. A person so relieved, whether he had or had not property, never was liable to an action for such relief at common law. Inhabitants of Groveland v. Inhabitants of Medford, 1 Allen, 23. "The misjudgment of the officers of the poor as to the necessities of the person relieved raises no implied promise on the part of such person that he will repay moneys expended in his behalf.' City of Albany v. McNamara, 117 N. Y. 168 [22 N. E. 931, 6 L. R. A. 212]."

It is insisted by appellant that this action can be maintained under the provisions of section 3697, Rev. St. 1899. This section provides: "In all cases of appropriations out of the county treasury for the support and maintenance or confinement of any insane person, the amount thereof may be recovered by the county from any person who, by law, is bound to provide for the support and maintenance of such person, if there be any of sufficient ability to pay the same.” This action is nothing more nor less than one against the estate of the insane ward, and it is a misconception of the provisions of the section quoted to say that such an action is contemplated by its provisions.

It is apparent that section 3697 has reference to the relation of parent and child, and where a minor child becomes insane, and the county furnishes it support and maintenance, the father, who, under the law, is bound to provide for the support and maintenance of his children, would fall within the provisions of that section, and a recovery could be maintained against him; but the statute falls far short of embracing within its provisions ac

TOOTLE et al. v. BUCKINGHAM et al. (Supreme Court of Missouri, Division No. 1.


A mortgagor of certain cattle could not, by mixing other cattle of like description with those mortgaged, defeat the mortgages, either in his own favor, or in that of the subsequent purchaser of certain of the cattle under him, on the ground that a portion of the cattle sold were not the cattle mortgaged.

[Ed. Note.—For cases in point, see vol. 9 Cent. Dig. Chattel Mortgages, $8 215, 220, 295; vol. 10, Cent. Dig. Confusion of Goods, $ 13.) 2. SAME-DESCRIPTION-LOCATION.

Where the description of certain cattle mortgaged was ample in other respects, the inortgage was not invalidated by a misdescription of the location of the cattle mortgaged.

(Ed. Note. -For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, & 96.] 3. SAME-BONA FIDE PURCHASER.

Where, at the time an owner of cattle sold them to one under whom defendants claimed, he told the purchaser that the cattle were mortgaged to plaintiffs' assignor, and for that reason the sale would be only for cash to pay such debt, and the purchaser agreed to pay cash, but maneuvered to get possession, and surreptitiously removed the cattle to another county, where they were afterwards replevied, he was not an innocent purchaser thereof.

ro- | .

Under Const. U. S. art. 4, § 1, requiring full faith and credit to be given to the judicial proceedings of sister states, a foreign judgment in replevin would be given the same effect in Missouri as if it had been rendered by a Missouri court having jurisdiction.


breach, delivered the notes and mortgages to Plaintiffs, the assignees of a debt secured

the Bohart Company, from whom they had by a chattel mortgage on certain cattle, delivered the notes and mortgages to their assignor

purchased them, for the purpose of suit and for collection, and it brought replevin to re

collection. The Bohart Company went to cover the cattle; but, on its attorney stating Kansas and instituted an action of replevin that such assignor held the claim for collection in its own name against Buckingham in only, the judge rendered judgment for defendant for the value of the cattle replevied. Held,

Wabaunsee county, based on the mortgages, that such judgment was not res judicata of to recover possession of the 200 head of catplaintiffs' right to the cattle or their proceeds. tle. The Kansas law required the plaintiff 6. SAME · JUDGMENTS - ENFORCEMENT-IN

in such suit to give bond with resident secuJUNCTION. Plaintiffs, being the holders of mortgages

rity, and, to meet this requirement, the plainon certain cattle, delivered them to their as

tiffs in this suit, Tootle, Lemon & Co., prosignor for collection; and in replevin, brought cured a correspondent of theirs, resident in in the name of such assignor, plaintiffs procured Kansas, to become the surety, and agreed to a bond, and agreed to indemnify the sureties. The cattle were sold after being taken under

indemnify him in the matter, which was the writ for $4,500, but judgment was render- done. Under the writ of replevin the shered against the plaintiffs' assignor, in the re- ift found and seized 199 head of the cattle, plevin suit for $6,000, the value of the cattle, on

and delivered them to the Bohart Company, the ground that plaintiffs' assignor had no capacity to maintain replevin, which judgment

who immediately shipped them to St. Jowas subsequently acquired without considera- seph, where they were sold in the market tion by defendants, who had purchased the cat

for $4,500 cash, which sum the Bohart Comtle from a fraudulent vendee of the mortgagor under a title subsequent to the mortgages.

pany placed in the plaintiffs' bank to the Held, that the judgment against plaintiffs' as

credit of a suspense account, and it was there signor in the replevin suit represented the cat- when this suit was filed. Pending the suit tle, and that plaintiffs, being entitled thereto,

in Kansas the plaintiffs in this suit discov. were entitled in equity to an injunction restraining defendants from enforcing such judg

ered that there were two other mortgages on ment.

these cattle, prior in time to the two they Appeal from Circuit Court, Buchanan

had bought from the Bobart Company, and County; A, M. Woodson, Judge.

in order to clear up their title they bought Suit by Milton Tootle and others against

those also. They are called the "Cooke E. J. Buckingham and others. From a decree

Mortgages." In May, 1899, the replevin suit in favor of plaintiffs for less than the relief

came on for trial in Kansas, and in his opendemanded, certain defendants and the plain

ing statement the attorney for the plaintif tiffs appeal. Aflirmed.

said that the plaintiff the Bohart Commis

sion Company was not the real owner of the Johnson, Rusk & Stringfellow, for appel

notes and mortgages, but held them only for lants.

collection, whereupon the court decided that R. A. Brown and Scarritt, Griffith & Jones, the plaintiff was not entitled to prosecute the for respondents, cited Snorgrass v. Moore, 30 suit, and rendered judgment for the defendMo. App., loc. cit. 235; Bell v. Hoagland, 15 ant Buckingham for the return of the catMo. 360; Hickerson v. City, 58 Mo. 61; Sprald-tle, or for $6,000, their value. Buckingham ing v. Conway, 51 Mo. 51; Baldwin v. David- immediately assigned the judgment to the son, 139 Mo. 118, 40 S. W. 765, 61 Am. St. Central Savings Bank of St. Joseph and its Rep. 460.

receiver. On November 14, 1898, four days

before Gillett bought the 200 head of cattle, VALLIANT, J. This is a suit in equity, he executed his notes for $8,000 to the Gilaimed to adjust the claims of the plaintiffs lespie Commission Company, and a mortgage in a controversy growing out of certain cat- on these 200 head of cattle, or cattle of the tle transactions in Kansas. The substantial same description, to secure the same, which facts stated in the petition are as follows: notes and mortgage the Gillespie Company The plaintiffs, as partners, in November, transferred to the Central Savings Bank. 1898, acquired by purchase from one of the When Curtis sold the cattle to Gillett, it was defendants (the Bohart Commission Com- with the understanding that it was to be a pany), for a valuable consideration, certain cash sale, and Curtis intended to use the cash negotiable promissory notes, secured by two in payment of the Bohart mortgages then chattel mortgages covering 243 head of cat- held by the plaintiffs in this suit; but Gil. tle in Kansas. The notes and mortgages lett got possession of the cattle without pay. were made by one Curtis, who was then the ing anything for them, and he and Buckingowner of the cattle, dated Novenber 5, 1898, ham shipped them to Wabaunsee county. and the mortgages were duly registered as After this suit was filed, the defendants required by the laws of Kansas. Afterwards, Shoup, McDonald, Townsend, Robinson, and on November 18, 1898, in breach of the condi- the Hax Realty Company purchased from tion of the mortgages, Curtis sold and de- the receiver of the Central Saviugs Bank livered 200 head of the cattle to one Gillett, the $6,000 Kansas judgment, and, on their who, without consideration, delivered them petition, were made parties defendants hereto one Buckingham, who removed them to in. The prayer of the petition is that the another county in Kansas, to wit, Wabaun- defendants be required to interplead touchsee county. The plaintiffs, on learning of the ing their interest in the cattle or the proceeds; that plaintiffs be decreed to have the ingham. We will consider the defendants' first right to the fund in the bank, and the appeal first, as that covers all that is mabenefit of the $6,000 Kansas judgment; that terial in the controversy. the Bobart Company be decreed to pay plain. 1. The first contention is that the Cooke tiffs out of what it owes on the $6,000 judg- mortgages were satisfied before they were ment the balance due them; and that the transferred to the plaintiffs, and that plainother defendants be enjoined from attempt- tiffs paid no valuable consideration for them. ing to collect that judgment. The separate That is not a very material question, beanswer of defendants Shoup and others set up cause, if the plaintiffs' title to the cattle is their title, as purchasers of the assets of the good by virtue of the Bohart mortgages, it Central Savings Bank from the receiver, to is sufficient, since the notes secured by those the $6,000 Kansas judgment, and the Gilles

mortgages are more in amount than the pie notes and mortgage, and denied that the value of the cattle in dispute, and in that cattle involved in the replevin suit and cov- view the Cooke mortgages would be signifiered by the Gillespie mortgage are the same

cant only of an older outstanding title until cattle covered by plaintiffs' mortgages; that the plaintiffs had acquired possession of the notes covered by the Cooke mortgages them. The evidence shows that there were were paid off and discharged before they

negotiations between Curtis and the Baxcame into plaintiffs' possession, and plaintiffs | ters, on the one hand, and Cooke, on the paid nothing for them; that, if plaintiffs bad

other, looking to a trade of the steers cove any title to the cattle in the replevin suit,

ered by their mortgages for a lot of calves, they have already realized it by accepting the

and the terms were agreed on, but the terms $4,500 for which the cattle were sold in St.

were not carried out in the essential particuJoseph, to which sum these defendants assert

lar of making the cash payment; that there no claim, but do assert that they own and

had been only $194 paid on the $3,080 note, are entitled to collect the $6,000 Kansas judg

and nothing paid on the other. The evi. ment; that the Bohart Commission Com

dence also shows a consideration for the pany, the principal in that judgment, is in.

transfer, in the form of a release by the solvent. The answer also states that at the

plaintiffs to Cooke of another mortgage, trial of the replevin suit the attorney for

which seems to have been satisfactory to the plaintiff in that suit, in bis opening state

bim, whatever its value to him may have ment, said that his client had no interest in

been. the notes or mortgages, except that it held

2. It is also contended that the cattle coythem for collection for the owners, Tootle,

ered by the Bohart mortgages are not the Lemon & Co., and that upon that statement

same cattle that were sold to Gillett and the court rendered judgment for the defend

taken in the replevin suit. There was a ant Buckingham. The Bobart Company filed

great deal of evidence on this point, which an answer admitting the allegations of the

we deem it unnecessary to review in detail. petition, and joining in the prayer. Defendant Curtis filed an answer admitting the

After going through it all, we have no doubt execution of the notes and mortgages to the

of the correctness of the finding of the chanBohart Company for $7,722, and that they

cellor. There was evidence tending to show were unpaid, and stated that as to all other

that at the time Curtis sold to Gillett there matters in the petition he had no knowledge

were a large number of other cattle of the or sufficient information to form a belief.

same general description which Curtis had Buckingham, who was a nonresident of Mis

put in the herd with those covered by the souri, and was served with process in Kan.

Bohart mortgages, which Curtis had bought sas, Bled no answer. The cause came on to from the Baxters, but that evidence does not be beard on the pleadings and proofs, and the

show that the Baxter cattle could not easily court rendered a decree finding the issues for

be distinguished from the others. Curtis the plaintiffs, and decreed that the plaintiffs could not, by mixing other cattle of like were entitled to the proceeds of the cattle description with those he had mortgaged to sold in St. Joseph, then amounting to $4,- Bohart, defeat the Bohart mortgages, either S90.75, to be credited on the Curtis notes, in his own favor, or in that of a subsequent and were also entitled to the interest of the purchaser under him. Adams v. Wildes, 107 defendants in the $6,000 Kansas judgment, Mass. 123; Fuller v. Paige, 26 Ill. 358, 79 and enjoined the defendants Shoup and oth- Am. Dec. 379; Jones on Chat. Mort. $ 481. ers from attempting to collect that judgment There is a misdescription in the Bohart mortfrom the principal or his sureties, and en- gages of the cattle in one particular. They joined the Bobart Company from paying the are described as being two miles north of same to them, and rendered judgment against Durham, in Marion county, Kan., whereas them for costs. The decree dismissed the they were never in that county. Curtis suit as to Buckingham on the ground that bought the cattle from the Baxters, and service on him in Kansas did not bring him they were then in Morris county, where Curinto court. The defendants Shoup and others tis and the Baxters lived. The intention was appealed from the decree against them, and to move the cattle to Marion county to feed, the plaintiffs appealed from so much of the but they had not been moved when the Bodecree as dismissed the bill as against Buck- hart mortgages were given, and when the

sale to Gillett occurred. In other respects St. Louis v. Babcock, 156 Mo. 154, 56 S. W. the cattle were correctly and sufficiently 732. And such seems also to be the law of described. At the date of these transactions Kansas. Lindley v. Ry., 47 Kan, 432, 28 Pac. the statute of Kansas relating to registra- 201; Ry. v. Hartman (Kan. App.) 49 Pac. tion of chattel mortgages (2 Gen. St. Kan. 109. And in such case the judgment is not 1897, § 1, c. 120) was as follows: "Section open to collateral attack on the suggestion 1. Every mortgage or conveyance intended to that the court erred in its opinion. We will operate as a mortgage on personal property therefore take this Kansas judgment at its which shall not be accompanied by an im- full face value, as we would if it had been mediate delivery and be followed by an rendered by one of our own courts. But it actual and continued change of possession is not the doctrine in this state that every of the things mortgaged, shall be absolutely possible issue that might have been tried void as against the creditors of the mort- under the pleadings in a given case is congagor and as against subsequent purchasersclusively presumed to have been tried, and and mortgagees in good faith, unless the the matter become res adjudicata. Only the mortgage or a true copy thereof shall be matters that were actually considered by forthwith deposited in the office of the reg- the court are settled by the judgment. For ister of deeds in the county where the prop- our rulings on this point, see cases cited in erty shall then be situated, or if the mort- the brief for respondents. The evidence gagor be a resident of this state, then of the shows that the only point decided by the county of which he shall at the time be a Kansas court was that a mere agent holding resident." These Bobart mortgages were the mortgage and notes for collection for his registered in conformity to the requirements | principal could not in his own name mainof that statute in Morris county, which was tain an action of replevin for the chattels the county of the mortgagor's residence, and mortgaged. The record shows that Tootle, the place where the cattle were at the time, Lemon & Co. made application for leave to and where they were when Gillett took come in and interplead for the cattle, but that them. Besides, Gillett was not an innocent their application was denied. That ruling purchaser. Curtis told him while he was ne- only meant that Tootle, Lemon & Co. could gotiating the purchase that the cattle were not litigate with Buckingham in that case. mortgaged to the Bohart Commission Com- There was therefore no decision affecting the pany, and for that reason the sale would be plaintiffs' title to the cattle, and none affectonly for cash to pay Bohart. Gillett agreed | ing that of Buckingham, except that the Boto pay cash, but maneuvered to get posses- hart Commission Company, who had no title sion, and surreptitiously removed the cattle to the cattle, was not entitled to take them to Wabaunsee county, where they were after- out of his possession. There was no adjudiwards caught by the writ of replevin. The cation in that suit of the question of the fraudulent scheme is also shown by the fact title of these plaintiffs to the cattle. that four days before his purchase Gillett 4. We come now to the last and serious executed the mortgage to the Gillespie Com- question in the case; that is, has a court of pany, which that concern transferred to the equity the power to grant the plaintiffs reCentral Savings Bank, and which is the mort- lief against the collection of the $6,000 mongage under which these defendants now ey judgment in Kansas? The Bohart Comclaim. Under the circumstances the misde- pany is insolvent, but the judgment is good scription as to location, the description in against the sureties on the replevin bond. other respects being ample, was immaterial. These plaintiffs are obliged to indemnify The finding of the chancellor that the 200 those sureties for their loss. Therefore, if head of cattle carried away by Gillett, and the defendants collect the judgment, they in found under the writ of replevin, were cove effect collect it from those plaintiffs. From ered by the Bohart mortgages, was in ac- the whole record in the case, we have fo cordance with the weight of the evidence. hesitation in holding that the 200 head of

3. Defendants' next proposition is that the cattle in question belonged to the plaintiffs replevin suit in Kansas settled the whole in this suit, and that they were fraudulentcontroversy. We are required by our fed- ly taken away by the man under whom eral Constitution to give full faith and credit these defendants claim. Now, by an unto the judicial proceedings of a sister state. toward conjunction of affairs, the defendU. S. Const. art. 4, § 1. We will therefore ants are in a position, if left free to execute give to the judgment of the Kansas court in their Kansas judgment, to, in effect, make the replevin suit the same force and effect

these plaintiff's pay for their own cattle; and we would give it if it had been rendered by that, too, to those who derive their only title a court having jurisdiction of the suit in this from the man who fraudulently deprived the state. The court had jurisdiction to render plaintiffs of the cattle. It cannot be said judgment for defendant if, in its opinion, the that there was any fraud perpetrated in the facts stated by the plaintiffs' attorney in his concoction of the judgment, because that opening statement were such that the plain- judgment fell upon the defendant in that tiffs were not entitled to recover. Such is case without any action on his part. The our law. Pratt v. Conway, 148 Mo. 291, loc. only activity displayed by him was in the cit. 299, 49 S. W. 1028, 71 Am. St. Rep. 602; transference of it after it was rendered. The

plaintiffs have skillfully woven into their sence of the cattle, is the alternative of the bill the idea that they are invoking the power cattle. And the defendants stand in no betof the court of equity to trace their cattle ter light than Buckingham, under whom they into the money for which they were sold in claim, stood. The judgment was transferred St. Joseph, and which they bring into court to the Central Savings Bank to secure the as a trust fund as the subject of the litiga- | old debt, and without present consideration, tion. But the defendants just as skillfully and these defendants bought the assets of decline that issue by disclaiming any interest the bank after this suit was begun. The in that fund. They are perfectly willing for fact that these cattle were shipped from the plaintiffs to have that money, and only Kansas by Bohart, and sold in St. Joseph, ask that they be let alone to collect their and the money paid into the plaintiffs' bank, Kansas judgment according to its tenor and does not make the situation different from effect. That is the point in the case. If what it would have been if the cattle or equity is powerless in the premises—if it their price had never come into the plaincannot restrain the defendants in the collec- tiffs' hands, because, if they have that judgtion of that judgment—then justice is de- ment to pay in Kansas it means, in effect, feated in this case by the forms of law. In turning the money they have received, and the exercise of its jurisdiction to restrain a more besides, over to these defendants, party in the collection of a judgment at law | Buckingham's assignees. on the ground of fraud, the equity court has Our conclusion is that the Kansas judg. always held that it would consider only the ment represents and stands for the cattle, charge of fraud in obtaining the judgment. and as these plaintiffs, as against these denot of fraud in the cause of action, or fraud fendants, would be entitled to the cattle, so in the form of perjury in the evidence by they are entitled to that judgment, and dewhich it was established; and the reason fendants have no right to collect it. given was that the law court which tried As to the plaintiffs' appeal, there is no the case was competent to judge if there was necessity to discuss it. Since it conclusivefraud in the cause of action or perjury in ly appears that Buckingham has sold all of the evidence. This is not a cause, however, his interest to these other defendants, a in which the plaintiffs are assailing the judgment against him would be of no conjudgment. It is a case in which the judg

sequence. ment stands in the place of the cattle, and The judgment of the circuit court is af. parties who are not entitled to the cattle firmed. All concur. are in position, if left alone at law, to enforce it against those to whom the cattle rightfully belong. Suppose the cattle had been kept in Kansas to abide the judgment HOLMES et ux. V. MISSOURI PAC. RY. CO. in the replevin suit, and when the judgment

(Supreme Court of Missouri. June 1, 1905.) was rendered they had been turned over to

1. INFANTS Buckingham, and he had turned them over


FOR JURY. to these defendants; is there any doubt but

The question whether a child was sui juris that these plaintiffs could have recovered is, when the evidence is all one way, and such them? But the cattle were not left there

that there can be but one answer, a question

for the court, but otherwise it is for the jury. they were shipped away by Bohart-and

2. SAME-EVIDENCE. there is nothing left in Kansas to represent

In an action for the death of an eight year them but the $6,000 judgment. Is not that old child killed at a railroad crossing, held, that judgment, therefore, in the eye of equity, the the question whether the child was sui juris

was one for the jury. cattle? If the cattle had been put into the possession of the sureties on the replevin In Banc. Appeal from Circuit Court, Johnbond in Kansas to hold for their indemnifi- son County; Wm. L. Jarrott, Judge. cation, and if, when the judgment was ren- Action by C. W. Holmes and wife against dered, they had delivered the cattle to Buck- the Missouri Pacific Railway Company. ingham in satisfaction thereof, the plaintiffs From a judgment in favor of defendant, in this suit could bave recovered them from plaintiffs appeal. Reversed. him in an action at law, or, if the plaiu

The following is the opinion of VALtiffs could have shown that delivery to him

LIANT, J., in Division No. 1: would Jeopardize their remedy at law, they “Plaintiffs are husband and wife. Their might have had direct relief in equity. And

child, eight years old, was struck and killed in such case, if the sureties had made way

by a locomotive engine drawing a passenwith the cattle, so that they did not have ger train on defendant's road at the crossing them to respond to the judgment, and had of Warren avenue, in the city of Warrenspaid that money alternative, the plaintiffs burg. The petition charges negligence on could have recovered the amount from him, the part of defendant's servants in charge of or before each payment, upon a showing the engine, in this: that they failed to give that he was insolvent, could have enjoined a signal, by bell or whistle, of the approach the payment to him. Thus, in any view of of the train; that they saw, or by the exerthe case, the money judgment, in the ab- cise of ordinary care would have seen, the

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