57 Kan. 619 | Kan. | 1897
The original action was replevin brought by the Bank against Gardner, who was Sheriff, .and Privett, who. was Deputy Sheriff, to recover 125 head of cattle, 67 head of calves, 97 head of hogs, 19 brood mares, 1 stallion, 2-|- sets of harness and 2 lumber wagons. A trial was had before the Court and .a jury at January term, 1892, resulting in a judgment in favor of the plaintiff below.
Prior to February 1, 1889, this property belonged to F. B. & S. S. Singer, who held the same on two large tracts of land four or five miles apart, one being known as the Silver Creek place and the other as the Home Farm of S. S. Singer. On November 21, 1888, H. W. Lewis, president and trustee of the Kansas National Bank, commenced an action against S. S. Singer, F. B. Singer and others on a promissory
F. B. & S. S. Singer were largely indebted to the-Anthony National Bank ; and on or about January 15, 1889, they executed to F. D. Denlinger, its cashier, a-chattel mortgage, to secure certain promissory notes, amounting in all to $7,385, this mortgage being dated. January 1, 1889. Late in the afternoon of February 1, and after the conversation between Privett and S.S. Singer, the latter went to the Bank and told the-managing vice president, H. M. Denlinger, that he wanted to secure the Bank by chattel mortgage, the-indebtedness having largely increased since the giv
No evidence was given tending to impeach the good faith of the indebtedness of F. B. & S. S. Singer either to the Bank or to Lewis. As to the latter, the first mortgage given to the Bank was not valid on February 1, because there is no pretense that he had any notice of it and it had not then been filed for record. It will therefore be seen that the decisive question in the case is, whether the proceedings of the deputy sheriff were or were not sufficient to inaugurate and continue a lien in force when Noftzger took possession for the Bank. There is no doubt that Noftzger’s acts and doings were sufficient to constitute a possession good against the Singers, and, so far as appears, as against all the world except the Deputy Sheriff. If the latter then had a lien, the possession of Noftzger for the Bank was subject to it. There was some evidence on the trial and on the motion for a new trial tending to show that, when S. S. Singer went to the Bank on Friday afternoon, he told the vice-president that Privett had been at his place with an order of attachment, a copy of which Singer had with him and exhibited to the officers of the Bank; and it is shown in the testimony in behalf of the Bank that they knew Privett had been at Singer’s farm seeking to collect a claim. One creditor may, however, legally obtain a preference over another by the consent of the debtor. S. S. Singer may have acted treacherously with Privett, but the Bank sustained no relation either to the Deputy Sheriff or to Lewis preventing it from deriving an advantage even by Singer’s bad faith to them. In taking possession under the mortgages, the
Several questions are raised as to the testimony, the instructions of the Court and the refusal to give instructions requested by the defendants below. We have examined them all, but everything hinges upon the validity of the levy by the Deputy Sheriff, and as to this the jury was properly instructed, and there was a general verdict without findings upon any particular question of fact. We do not find that any material error was committed in the trial of the cause.
The judgment will be affirmed.