294 P. 877 | Kan. | 1931
The opinion of the court- was delivered by
This action is one in replevin to recover the possession of. an airplane. Judgment was rendered in favor of the plaintiff, and defendant Wallace Whitcomb appeals.
A jury was impaneled. Evidence for both plaintiff and the defendants was introduced, and at the close of that evidence the court instructed the jury to return a verdict in favor of the plaintiff, which was sdone, giving to the plaintiff- the airplane or the sum of $360.
The mortgage had been filed before the attachment under which the airplane was sold was levied. The marshal sold the airplane subject to the mortgage. Wallace Whitcomb bought under those conditions. He cannot be heard to say that his purchase of- the airplane was free and clear from the claims of the plaintiff under
2. There was evidence which tended to prove that the Bales Investment Corporation was insolvent at the time the chattel mortgage was given to the plaintiff. It is argued that such insolvency rendered invalid the mortgage given to the plaintiff because it made him a preferred creditor while he was a stockholder in the corporation. Let it be conceded that this argument might be good if Wallace Whitcomb had not, when he bought the airplane, expressly recognized the validity of the mortgage and bought subject to it.
3. Whitcomb contends that the plaintiff cannot rely on the fact that the airplane was sold subject to the mortgage because estoppel was not pleaded. It was not necessary to plead estoppel. In Hoisington v. Armstrong, 22 Kan. 110, this court declared that all a plaintiff is required to set forth in his petition in an action in replevin is that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto, that he is entitled to immediate possession of the property, and that the defendant unlawfully detains the same from him. That rule was followed in Batchelor v. Walburn, 23 Kan. 733, 736, and in Salisbury v. Barton, 63 Kan. 552, 66 Pac. 618. In addition to the rule which has just been stated, section 60-3317 of the Revised Statutes would prevent a reversal of this judgment for the matter now complained of. That section prohibits a reversal for errors or irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining.
The judgment is affirmed.