*1 it testimony the face of merely expert and on explained. This was say matter of law as a How can this court it is inconsistent. recovery was plaintiff’s and therefore have been absorbed would clearly testimony it think under great. too We jury. for the such means neglected to use if

There is no but that doubt under ordinarily person would use recovery prudent effect a as an any aggravation damages for circumstances, he recover cannot such circumstances neglect; injury growing his of such out under contributory negligence as far guilty been he would have stated, injuries J. As are concerned. [17 neglect, any, in his say law that we cannot as a matter of case, injury. bar, aggravated his’ has to or contributed J., Arnold, J., concurs; Trimble, P. judgment is affirmed. absent. Defendant; Walter Respondent,

Ed Adamson, Appellant.* Sheep W. M. Leitch Commission Appeals. December 1927. *2 22, p. Attachment, 6CJ, n. section Juris-Cyc *Corpus References: 33, p. 1, p. 11CJ, section n. Mortgages, section 86; Chattel 22CJ, 35; Evidence, 339, p. 624, n. 338, p. n. section 10; section n. 1950, p. 133, 95; 23CJ, n. 30. p. 151, section n. section and, respondent. M. Glenn for Capron A. of counsel. Steeper appellant; C. H. Haas & Harzfeld, Beach Adamson, against de- by respondent, FRANK, a suit C. This is recovery for labor an account Fogelstrom, seeking fendant in aid others, with attachment by respondent and performed .and Company was summoned Sheep Commission W. M. Leitch county justice court of Jackson originated in the garnishee. The suit Upon appealed. garnishee judgment and plaintiff recovered judg- against court, plaintiff a trial de nono in the circuit recovered garnishee’s appeal. here on garnishee. The case is against ment ,an facts, agreed statement was to the court trial below as follows: the defendant that agreed plaintiff and “It upon above facts, which the

following is the correct statement of case to the court. is submitted defendant, is a ranchman

“That Walter county, Kansas, post Wesken, farmer Wallace whose office Kan- employed differ- Fogelstrom sas. Plaintiff contends that defendant ranch; among help upon men farm or ent as hired men said Adamson, employed by Fogelstrom men said was one named Ed plaintiff; Wayne Starkey, named Robert one and one named Starkey Adamson, Wayne said Adamson Robert assigned Adamson, Ed who is transferred and their claims to herein; Adamson, men, to-wit:. that said three Ed wages follows: Wayne Starkey Robert Adamson claim as ...................................$48.40 “Ed Adamson “Robert Adamson .......................... n ..... 215.00 Starkey “Wayne 225.49 ............................... total $488.89 makes claim of w,as large Fogelstrom quantity

“Defendant the owner of a head; seventy goods about 1000 also about horses and other *3 upon large and That of used found farm. the State Bank Sharon Springs, Kansas, Fogelstrom’s had a on mortgage chattel $5800, duly property to the amount of which filed in about was county, copy in Kansas, accordance with laws Wallace but no the any mortgage of said it was ever Jack- reference to Missouri; county, president had a 'son also that the of the bank part personal note and on of the above men- live stock $9591.78; to tioned the amount of and that the indebtedness owed- president to the bank; January, was the of the that defendant, president the Fogelstrom, the the told of State Springs part Bank of Sharon ship sheep that he wanted to of the by City; covered the bank’s to market in Kansas that president Woodhouse, Mr. bank, ship- the of said consented to said ment agreement Fogelstrom pro- with the with defendant the sheep ceeds from sale the to be deposited by the were the com- company selling mission same, credit of the Bank State of Sharon Springs City, National Bank Drover’s of Kansas Missouri. defendant, Fogelstrom, shipped

“That sheep were part sheep covered above January, mentioned, 1923, and sheep said consigned were the name of Walter Fogelstrom to the W. M. Leiteh Sheep Commission garnishee, City, Missouri; of Kansas that said came sheep into Kansas market and taken over were for sale the W. M. Sheep

Leiteh Commission Company; agreement that any way communicated in to the Commission Company. The Com- mission Company garnishment was served with summons in this case of Adamson v. after it had sheep received the and they were sold. be submitted taken shall depositions heretofore

“That in this ease. evidence justice merits between .by “The case was not tried garnish- and by attachment and defendant. The suit was Bank Statp claim of the notice ment. Garnishee was served sheep proceeds Springs and Sharon contended question belonged to said bank. the chattel president the bank that held Woodhouse,,

Mr. under- testified that the gage mortgagor, both on standing mortgagee was that mortgagor and City, Missouri, and them ship sell Kansas arrangement the market there. Mr. Woodhouse testified days shipped. The mort- sheep,were made about ten before the thirty days arrangement was made some gagor testified that ,and he Mr. shipped at that told Wood- before the time were January sheep were expected 15. The house that about City, Missouri, on arrived in Kansas shipped January garnishee, January was made morning of 15. This Kansas, Missouri, sale, but before company commission company made the was served notice sale was commission garnishment. legal under the statutes of Kansas Contention made that mortgaged personal in the since title legal executed in effect question was be determined of that State. must statutes difficulty with this contention is that statutes of Kansas proven. judicial pleaded are neither nor We cannot take notice of & F. Ry. Co., them. S. 118 S. v. St. Louis W. [Mathieson Lucksinger, 1, 14, Coleman S. *4 indulge presump being in which we are authorized to State the prevails, law we tion that the common must hold the laws of question. govern interpretation this State the of the in 209, Glass, App. 46 v. [Witascheck 215.] Appellant’s mortgaged second contention is to title the property mortgagor in the.mortgagee, the and the commission company, acting agents of the in the garnishee, were sheep, principal’s property sale of the therefore the and agent. of could not be attached a creditor the in is merit this because under the law of There no contention controlling case, this in this the title to the mort- is gaged sheep mortgagee. in the in a chattel creates lien

The rule this State is that legal property pledged, .and the title as well as the on the of property mortgage, the possession the covered before condi- to mortgagor. Milling Tyler, Co. v. 235 broken, tion is the [Olean 186, showing No is App. S. W. made that

1247 mort- the or that were broken of the conditions of the possession of from the attempted to take gagee or took mortgagor contrary consented On mortgagor. the might ship sale, permitted sheep Missouri condi- mortgagor, The name. own gagor them his of the possession legal title and having broken, tion both sub- of the the consent sell them without legally could mortgagee’s The mortgagee. course, ject, rights to the of sell, but authority go 'not to the consent does waiver of lien. the removal of mortgagee’s consent It is contended that waive the mortgage, did not from the situs of the support cited in jurisdictions other are lien. Authorities from Shapard Hynes, Buswell, 37 v. Vt. this contention. v. [Cobb Lech, 73 Ark. Lumber v. 104 l. Co. Fed. c. Creelman Armitage-Hirschell Potter, App. Co. v. S. Ill. Dwightson v. 606; In Shannahan

Handley Harris, v. 48 Kansas re Co., Motor 1922); Julesburg (Del. 118 Atl. 599 Flora v. Co., Hdw. (1920).] Colo. Pac. may jurisdictions, rule this Whatever the be other no court authority know, we is State, so far as has so held. There contrary. Todd, 204 W. Mfg. State In to the Geiser S. Co. Appeals, question, Springfield speaking to a similar

said:

. . but an examination shows these cases that there was no mortgagee having given about the his consent for the mortgaged removal of mortgaged from its situs when in another State. comity doctrine of .applies only when the mortgaged chattel is moved from- its situs without knowledge or mortgagee; consent of the but we find no case our State on point.” quotes

This approvingly case also from 11 C..J. following: great weight authority “The is to the effect properly (cid:127)mortgage, executed and according law to the place where the is executed located, will, if there, valid be held against valid even as creditors property purchasers good faith in another State which removed the mortgagor, unless there is some statute in that State to the contrary, or unless the transaction contravenes the policy law settled held to.be or jurisdictions of the forum. In some this is regard the rule without presence to the absence knowledge part consent as to the re- *5 by moval; authority but better it that, seems gagee has Consented to the property, removal of the he will forfeit right his to a lien he steps unless takes such are required 1248 propertjr which-the protection by

its of the State into the statutes is removed.” preserve its attempt to

The in this case made no refused to consent to re- mortgage. under It could have having con- property from the State of moval of the validity its lien either sented, preserved it could by shipping recording Mfg. question in Geiser v. Speaking name. to a like Co. its own Todd, supra, the said: court property, or, move the mortgagee could refuse consent to

“The jurisdic consents, his other he could record square justice, and we think substantial tion. This seems Hoffman, 369, v. 124 Tenn. 137 S. W. general is the rule. [Newsum Ed.) 260a; (5 sec. v. 490; Mortgages on Chattel Jones Fish Jones Armitage-Herschell 42 11 J. Co., supra, Co., Wash. C. et 602; Kanaga Taylor, 93 v. 7 Potter, App. St., 134, al. Ill. Ohio v. Doak, 70 Anderson 32 N. C. v. Bentley, Am. Dec. v. Greene Bank 60; Pennington County 114 52 C. A. Fed. C. Banman, v. ” 126 N. Neb. W. 654.] Appellant that under the law it insists was entitled to reason in which to after able time record arrived Bryson ; Penix, J. 426 v. this State. Mo. May Braley, App. 457, support Mo. are cited in this contention. hold in a These authorities do is entitled to a in which mortgage. reasonable time to record such again Supreme This Court in Wilson v. Milligan, court whereat the said: “Judge opinion Scott, who delivered Bryson the case of supra, v. Penix, that the prescribes observed statute no time within recorded, mortgages which such shall be and that under such cir party cumstances must have a purpose reasonable for that time is to be determined case; circumstances each the. where a deed within a reasonable time it has relation back to the time of execution. Conceding this doctrine to :be auf ease, purpose thoritative for the giving without our sanc tion, looking at facts disclosed the evidence, mort gagee county seat with free access to the recorder’s office day record, before he filed having it for this opportunity only it, to record avail it, failed to himself of but took it home him, believing that it necessary it, record can take no principle.” benefit from the above record the instant case discloses that the mortgagee had ample time to mortgage here, record its if it had so desired. The president of the bank arrangements testified that were made and sell the sheep, days ten before the was made. The arrangements testified such were made thirty days *6 shipped were Appellant that the shipment. knew before Knowing this, charged it was for immediate sale. the market mortgagor creditors of the knowledge ap- situation, once. In purchasers might attach this innocent mortgage, should the lien of its pellant preserve desired to steps do, ship- or at time the necessary so taken the ment was made. n Contentionis mortgagee’s consent to a sale of the made sheep, lien, given such did not because consent was waive be proceeds condition that the of the sale should credited on the mortgage debt, not done. The rule that where which was is mortgagee’s property given condition, to a sale of the is consent comply mortgagor with the condition the failure will not persons rights knowledge who have no of such con- affect & Company Wright Mason, dition. Cattle Loan & [Oklahoma that, App. 157, 161 and There is evidence cases no cited.] arrangements plaintiff mortgagees knew of mortgagor shipment and relative to the sale of the or the upon mortgagee’s given. condition which the consent to sell mortgagee’s made Contention is .also consent that mortgaged property might sold, prior be would not the lien waive If, to an actual sale thereof. heretofore held, as the removal of the property Kansas, mortgage, from the situs of the with the consent lien, waived the there was no lien on the property, removal, after either before or after the 'sale.

Appellant finally insists that a consents that the possession, may an make absolute sale the mort- gaged property, such consent is a waiver of except not as the lien purchasers, innocent good who in faith part with their. money, believing property is unincumbered. contention, From argued it is a pre-existing ,and an,d creditor induced to did not part anything

value reason of act of in consenting to a property, removal and sale reason, for this the mort- gagee’s consent such removal and sale was not waiver of the lien as to him. It must be that a conceded nonresident’s unincum- creditor, subject bered to attachment at the suit of and, if held, removal of heretofore from mortgage, mortgagee’s the situs of the consent, with the was a lien, waiver of the then there lien was no upon subject its arrival in and it was attachment creditor of its owner.

We find no reversible error the record and therefore affirm judgment. 'Williams, G., concurs. hereby C., is opinion by Frank, foregoing

PER CURIAM: The con- Arnold, JJ., Bland and court. opinion adopted J., P. absent. cur; Trimble, *7 etc., Respondent, Bankruptcy, Cole, Trustee

Robert M. Appellant.* Mayer F. Boot & Shoe Appeals. 1927. December Juris-Cyc *Corpus Appeal Error, 4CJ, References: 2835, p. section 3057, p. n. section n. Bankruptcy, CJ, 248, p. section 439, p. Trial, section 38Cyc, n. p. n. 1738, n. 64. Groves & Watkins M. Wagner Fred respondent. Landis & Duncan for appellant.