Griffiths v. Wheeler & Barber

31 Kan. 17 | Kan. | 1883

The opinion of the court was delivered by

Valentine, J.:

This was an action of replevin, commenced before a justice of the peace by Charles C. Wheeler and Charles A. Barber, partners as Wheeler & Barber, against John Griffiths, to recover the possession of certain neat cattle of the value of $100. After trial and judgment in the justice’s court, the case was appealed to the district court, where the case was tried by the court without a jury, and the court made certain findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the plaintiffs and against the defendant for a return of the property, and for $13.10 damages, and $24.50 costs; but in case a return of the property could not be had, then in lieu thereof the plaintiffs were adjudged to recover the sum of $100, the value of the property, and their damages and costs as aforesaid. The defendant complains of this judgment, and as plaintiff in error seeks to have the same reversed in this court.

It is admitted that the property in controversy once belonged to John Kauce, and both - parties claim the same under Kauce. The plaintiffs claim the same by virtue of a chattel mortgage, and the defendant claims the same by virtue of a purchase made after the execution of such chattel mortgage. And as we think, the only question involved in the case of any importance is whether this chattel mortgage is valid or not; and the validity of the mortgage, as both parties seem to concede, depends entirely upon whether the description of the property in controversy, as set forth in the chattel mortgage, is valid or not. If the description of the property as set forth in the mortgage is valid, then the plaintiffs are entitled to recover; but if such description is not sufficient, then the defendant is entitled to recover.

' It appears from the findings of fact as made by the court below, that at the time of the execution of the chattel mortgage, and prior thereto, and for a long time afterward, and up to and including the time when the defendant purchased the property, and afterward, John Kauce, the original owner of the property, resided in Marshall county, on a farm adjoining the county line, between the counties of Marshall and Nemaha; and during all this time the property in controversy, which as we have before stated was neat cattle, was a part of the time in Marshall county, and a part of the time in Nemaha county. The cattle grazed upon the open prairie in both counties; but whenever they were at home they were in Marshall county. The defendant knew Kauce; knew where he resided; and knew that he resided in Marshall county. The aforesaid chattel mortgage was executed by John Kauce, and it sufficiently showed upon it face that Kauce claimed to own the mortgaged property; that it was then in his possession, and was to remain in his possession until default; that the same was then within the boundaries of Marshall and Nemaha counties, and was not to be removed therefrom. The mortgage, after its execution, was forthwith deposited in the office of the register of deeds of Marshall county, which was the proper place for it to be deposited. Indeed it was the only place where it could have been deposited or placed for the purpose of giving notice to creditors of the mortgagor and to subsequent purchasers and mortgagees. (Comp. Laws of 1879, ch. 68, art. 2, § 9.) As the mortgage was so deposited, the defendant was bound to take notice of the same and its contents; and if it sufficiently described the property in controversy he was bound to know it. But if it did not sufficiently describe the property, and if he had no other notice that the property was mortgaged, then he might rightfully have purchased the same.

When this mortgage was executed, Kauce had no other neat cattle except those which were intended to be described and included in the mortgage; and he has never since had any neat cattle except those, and their increase; and he has never had any neat cattle, except those intended to be described and included in the mortgage, that would come anywhere near answering to the descriptions given in the chattel mortgage. The cattle involved in the present controversy are only a portion of those included in the chattel mortgage, and they do not include or comprehend any of the increase from those included in the mortgage. The description contained in the mortgage of each of the cattle is not as full and as correct as it might have been, but still it is generally correct; and from such description and such inquiries as the mortgage itself would have suggested we think that any person might have ascertained, and ought to have ascertained, that the property in controversy was a part of such mortgaged property. The only differences between the descriptions as given in the chattel mortgage and the real description of the cattle, are fully stated in the following findings of the court below:

“4. The animal described in said mortgage as ‘one spring bull calf, dark red/ had some small white spots on him; but except for these he was dark red. The animal described in said mortgage as ‘one light red three-year-old heifer/ had some white upon her belly, and a little upon her back, but her general color was light red. The one of said two animals described in the mortgage as ‘ two spring heifer calves/ which is in controversy in this action, was a roan heifer which had a broken and enlarged knee. In all other respects the descriptions of all of the animals in the mortgage were correct, and said John Kauce had no other animals of the description of those embraced in said mortgage from the time the same was given until the commencement of this action, and he had no cattle during said time other than those included in said mortgage, and their increase.”

Taking all that is contained in the mortgage, together with all the surrounding circumstances, and viewing the same in the light of the decisions of this court already made, we think the descriptions contained in the mortgage are sufficient, and the mortgage itself is valid. (Adams v. Hill, 10 Kas. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246; Miller v. Kansas Lumber Co., 26 id. 574.)

■ The plaintiff in error, defendant below, also claims that the court below erred in rendering judgment; but we fail to perceive the error. The property was worth $100. Not only the replevin affidavit, but also the findings of the court below, show that the property was worth just that amount; and this is just the amount for which the court below rendered judgment, upon the condition that a return of the property could not be had. Now a justice of the peace has jurisdiction in all actions of replevin where the property in controversy does not exceed $ 100 in value. (Justices Code, §55.) And for the purpose of fixing the jurisdiction of the justice, the value placed upon the property in the replevin affidavit governs. (Justices Code, § 62.) And the justice may render judgment for the full value of the property “in case a return [of the property] cannot be had, and for damages for withholding said property, and the costs of suit.” (Justices Code, §65.) Now the district court, in rendering the judgment in this case, followed literally the foregoing sections of the justices code; and therefore no error was committed in rendering the judgment.

The judgment of the court below will be affirmed.

All the Justices concurring.