57 Kan. 771 | Kan. | 1897
This action was brought in the District Court by The George R. Barse Live Stock Commission
‘ ‘ plaintiff has at all times been the owner and holder of said mortgage, but at the time of the commencement of this action one W. E. Thorn was in possession of said note under the following circumstances : About one year and a half prior to the commencement of this action a verbal contract and agreement was entered into between said W. E. Thorn, who is a stockholder and director in the plaintiff corporation, and the plaintiff, by which said W. E. Thorn would advance money from time to time to the plaintiff, which plaintiff was at liberty to return at any time. The notes held by plaintiff were to be turned over to said W. E. Thorn, to be held by said Thorn as security for such advances, but the said Thorn should be under no obligations to present said notes for payment at the time of maturity thereof; nor was he to have anything to do with any mortgage that might have been.given to secure said notes, but that the same were to be retained by the plaintiff to enable it to preserve and take care of the mortgaged property. Soon after the commencement of this action the plaintiff did return to said Thorn all of the money advanced by him and took up said note, and is now in possession of the same.”
The proof tended to support these averments of the petition, and the jury found that they were true, and rendered a general verdict in favor of the plaintiff. The principal controversy in this Court is as to whether
Many authorities are cited to the effect that the indorsement of a negotiable promissory note, secured by mortgage, passes the title to the mortgage as well. This seems to be a well-settled rule of law. Other authorities are also cited sustaining the proposition that an assignment of a mortgage, where the assignor retains the note secured by it, is of no validity. In the absence of any special agreement, it has been held that the payee who has indorsed a note to a bank as collateral security cannot maintain replevin for property covered by a chattel mortgage securing the note so indorsed ; that the right of action is in the bank. Kavanaugh v. Brodboll, 40 Neb. 875.
The question to be determined in this case is whether, under all of the facts stated, the plaintiff had a right to the mortgaged property at the time the suit was instituted. Unless it had such right, the fact that it afterward paid Thorn the full amount of his advances and regained possession of the note would not enable it to recover in this suit; for its rights must be determined as of the time when the action was commenced. At that time Thorn held the note with the plaintiff’s indorsement. He also had the plaintiff’s prior parol agreement to be held absolutely on all notes so transferred, the plaintiff being allowed to retain the mortgage for the purpose of protecting its indorsement. The contention on behalf of the plaintiff in error is, in substance, that the plaintiff below was not the real party in interest; that, hav
It is urged that at the time the levy was made the property was in the possession of Campbell; that the note which the mortgage secured was not due; that he had an interest in the mortgaged property which was subject to levy and sale ; and that the Sheriff had the right to levy on the property and take it into his possession and sell it, subject to the mortgage. If this had been the purpose of the Sheriff, and if Campbell had had a substantial interest in the property, there would be much force in the contention. But the levy was made, not in subordination to, and
It is contended that the judgment against Ketcham, and Marsh, the deputy sheriff, is unwarranted. Mr. Ketcham, himself, testified that he directed the Sheriff t.o levy on Mr. Campbell’s cattle, and that he had made arrangements for a redelivery bond in the replevin action. It is very clear that the levy was made by his direction, and that judgment was properly rendered against him. The deputy who also took part in the conversion of the cattle was liable with the Sheriff.
We find ho reversible error in the instructions given by the Court, and nothing in the special findings of the jury conflicting with the general verdict. Complaint is made of the form of the verdict, but it appears to be sufficient. There is a little apparent conflict in the findings that the plaintiff’s interest in the mortgaged property was $3,710.41, while the value of -the property itself at the time it was taken
The judgment is affirmed.