A. D. Puffer & Sons Manufacturing Co. v. May

Briscoe, J., delivered the opinion of the Court. This was an action of replevin brought by the appellants, a corporation duly incorporated under the laws of the State of Massachusetts against the appellees, in the Circuit Court for Carroll County, to recover certain machinery such as is generally used in “the bottling business,” which was at the time in the possession of the appellees. The defendants pleaded, first, property in themselves; second, non cepit; third, property in George O. Suero ; fourth, property in the Bartholomay Brewing Company. The plaintiffs filed a replication to the first, third and fourth pleas, alleging property in, itself, and joined issue on the second plea.

The case seems, however, to have been tried upon the fourth plea, which alleged property in the Bartholomay Brewing Company. At the trial the plaintiffs proved that the property had been sold by the appellants to C. E. Jerome & Bro., a firm of Westminster, upon the instalment plan, subject to the condition that the title and right of possession should remain in the vendors until the property had been paid for. The plaintiffs had the right, under the contract, upon a breach of its conditions' to terminate it, and to resume possession of the machinery. Afterwards, on the third of June, 1890, C. E. Jerome & Bro., who had paid but a small amount of the money, ⁸⁵ sold their business, including the machinery, to the defendants (now appellees) and delivered the possession to them.

The defendants bought with full knowledge of the existence of the original contract, and assumed bo pay the liabilities to the plaintiffs. The evidence, on the other hand, on the part of the appellees, shows that on the IIth of December, 1890, this property was mortgaged by the defendants to Suero, to secure an indebtedness to him ; that at the time he (Suero) had no notice or knowledge of the original contract of sale, but was a bona fide purchaser without notice. There was also evidence tending to show that Suero was the agent of the Bartholomay Brewing Company, and that the mortgage had been given to secure a debt due it, and not to Suero. The issue then, in the case, being upon the plaintiffs’ replication, alleging property in itself, the onus probandi was upon it to support the allegation by proof.

While the execution of the mortgage from May to Suero passed the legal estate to the mortgagee, and as there was no condition in the mortgage as to the right of the mortgagor to retain possession until default, the right of possession followed the legal estate and vested in Suero. There was, however, error in admitting the evidence offered in the first and second bills of exception. Although the defendants set up title in Gleorge ■C. Suero by their third plea, yei it was not competent for them to sustain this plea, and to meet the issue presented by the plaintiff’s replication, by introducing the mortgage to Suero in evidence to defeat the plaintiffs’ title. In the case of Gotlschalk vs. Klinger, 33 Mo.

App. Reps., 416, it was held, “that a vendor is e'stopped