23 Kan. 421 | Kan. | 1880
On the 11th day of March, 1878, the People’s Saving Bank commenced an action in replevin against C. L. Dayton and others, to recover the possession of certain fruit trees or nursery stock, valued at $750. It was disclosed upon the trial that on the 23d day of November, 1875, one E. P. Diehl, being indebted to the bank, and desiring to secure the payment thereof, executed to it a chattel mortgage on the trees in controversy, then standing and growing on land belonging to a Mr. Reynolds, about three miles from Olathe, in Johnson county. The chattel mortgage was duly filed for record in the latter county, on November 25th, 1875. The mortgage was not renewed or continued as provided by §11, ch. 68, Comp. Laws 1879, p. 557, but in the fall of 1877, Diehl’s debt being unpaid, the bank claimed the trees, and took possession of them under the mortgage, by its president, S. A. Christy, with the consent of Diehl. It alleged that it furnished about $90 to pay for. having the trees taken up and removed to a point near the residence of Diehl, and thereafter employed Diehl, as agent of the bank, to look after, attend to, care for and protect the trees from the depredations of rabbits, etc. At'the June term of the district court of Johnson county for 1875, one E. C. Bott obtained a judgment for work and labor, against E. P. Diehl, and on the 5th day of February, 1878, Bott caused an execution to be issued against Diehl. The execution was levied upon the trees, and on the 25th day of February, 1878, the trees were bid in at sheriff’s sale, for $17, by J. L. Pettyjohn, as agent of E. C. Bott, who then sold them to C. L. Dayton. The jury returned a verdict for the bank, and judgment having been rendered accordingly, the defendants below bring the case here.
The contention is over the actual possession of the property. It is insisted on the part of the plaintiffs in error that, in the absence of an affidavit being filed under § 11, ch. 68, of Comp. Laws 1879, prior to the levy under the execution,
Whether there was a delivery of the mortgaged property and an actual and continued change of possession to the mortgagee, prior to the levy of the execution of Bott, the judgment creditor, was a question of fact for the jury. In answer to a special question, they returned the finding that the bank was in the actual possession of the property at the time of the levy of the execution. This finding fully sustains the claim of the bank, and the judgment. Unless it ■can be impeached, the plaintiffs in error are in no condition to dispute it.
Counsel argue, however, that as one of the findings is to the effect that as Diehl was in possession of the property, as
Again, in the case at bar, Bott, the judgment creditor, was-not induced to give any credit to the mortgagor by any pos
Some of the instructions of the court might perhaps becriticised, but upon the principal and important questions before the jury the directions were not sufficiently misleading to prejudice the rights of the plaintiffs in error, and therefore there was no material error.
The judgment of the district court will be affirmed.