32 Kan. 49 | Kan. | 1884
The opinion of the court was delivered by
This was an action of replevin, brought by B. Norman against J. Henry, a constable, and James J. Moonan, his deputy, to recover the possession of certain articles of personal property held by the defendants, as officers, under a writ of attachment against Esther Lyons and others. These articles are intoxicating liquors, and the furniture of a drinking-saloon. The plaintiff's claim to the property is founded solely upon a chattel mortgage executed to himself by said Esther Lyons and S. Lyons. The mortgage was executed to secure the payment of a certain promissory note for $250.36, and was executed and filed in the office of the register of deeds four days before the attachment was served. The court below rendered judgment in favor of the defendants and against the plaintiff for the recovery of the property and for costs, and the plaintiff, as plaintiff in error, now seeks to have such judgment reversed.
Upon the foregoing facts, we think the only question to be determined by this court is, whether the plaintiff's chattel
If the plaintiff, at any time before the Avrit of attachment Avas levied upon the property, had taken possession of the same under his mortgage, a different question would have been raised in this case. Under such circumstances, the plaintiff would hold the property, not only by virtue of his chattel mortgage, but also by virtue of his possession; and if his chattel mortgage should be held to be void, he might still claim the property as against any mere wrong-doer, by virtue of his possession. His possession would undoubtedly give him such a right to the property that he could maintain replevin against any mere wrong-doer who might disturb his possession. Possibly he might also maintain replevin against the mortgagor, if the mortgagor should disturb his possession; and it is possible also that he might maintain replevin against even a constable or sheriff, if such constable or sheriff should levy an execution or attachment on the property after the mortgagee had taken the possession of the same under his chattel mortgage. But Avith reference to this last question ato shall not express any opinion.
In the present case, in order to sustain the plaintiff's action, it is necessary to uphold and enforce a mortgage which transfers upon condition the title to intoxicating liquors, and to uphold and enforce such mortgage while its provisions are still to some extent executory and are not yet completed or
The' decision in this case is made upon first impressions. Of course many decisions have been made involving analogous principles, but we know of no case precisely like the present. Eor decisions involving analogous principles, we refer to 1 'Wharton on Contracts, §§ 340, 341, 342, 348, 350, 351, 356, and cases there cited.
The plaintiff cites the case of Cobb v. Far, 82 Mass. (16 Gray) 597. Whether this case is applicable or not, we can scarcely tell. Probably it is not; but if it is, then we do not agree with the doctrine enunciated therein.
The judgment of the court below will be affirmed.