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62 Mo. App. 515

Edmonston v. Wayne

Missouri Court of Appeals

Decided May 20, 1895

Missouri Court of Appeals · decided 1895-05-20

— Hon. John A. Hockaday, Judge. (1) Plaintiff’s mortgage was prior in point of time. It is a universal principle and well settled that a prior lien gives a prior claim which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective or be displaced by some act of the party holding it.

Relies on Stone v. Kelley & Son

Good law ✅— No negative treatment on recordhow we know

Reveksed and kemanded (with directions) · Decided 1895-05-20

How this case has been cited

Cited by 5 later decisions — most recently June 1957

5 state decisions

301895190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Smith, P. J.

¶1This 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 *519the horses covered by the mortgage, placed them in the keeping of another to be boarded, and failed to pay the board bill so created.

¶2And 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.

¶3But the defendant makes a further and additional point in the present case, which we will now notice.

¶4It 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.

¶5It 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 *520alone, •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.

¶6The 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.
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