249 F. 672 | 8th Cir. | 1918
This is an appeal by the trustee in bankruptcy from an order awarding Charles R. Kurt a secured claim on the proceeds of a stock of merchandise, etc., at Cheney, Kan., by virtue of a chattel mortgage given him by the bankrupts, Frank A. and Elia Flaherty, husband and wife, to secure their note for $9,855.42. The property was sold by the trustee, and the proceeds substituted. The principal contention of the trustee is that the mortgage was void. It contained these provisions:
“This mortgage to cover all of the merchandise or fixtures with and a part of said stock now and all merchandise or fixtures acquired during the life of the mortgage. Fifty por cent, of the gross receipts from the sale of said stock is to bo applied weekly as part payment of the note secured by this mortgage.”
The evidence at the hearing disclosed the following: The claimant had owned the stock, and the note was for a balance the 'bankrupts owed him on a sale and exchange of it and other properties. The stock was then free from commercial debts incurred by the claimant. The mortgage was given August 30, 1915, and was promptly placed of record and reported to the commercial agencies. The bankrupts took possession, conducted the business in the usual retail way, and made purchases to keep the stock in condition. The traveling
Upon the foregoing facts, the referee, after an exhaustive review of the statutes and the decisions of the Supreme Court of Kansas, held the mortgage valid and allowed the claimant a secured claim on the proceeds of the mortgaged property for the balance due him. The trial court affirmed the order of the referee.
There is also a petition to revise. It will be dismissed.
The order is affirmed.