30 Kan. 514 | Kan. | 1883
The opinion of the court was delivered by
This action was commenced before a justice of the peace by S. Lehman, against R. W. P. Muse, R. M. Spivey, and John A. Randall, partners as Muse, Spivey & Co., and after judgment in favor of the plaintiff and against the defendants, the defendants appealed the case to the district court, where another trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendants for $59.55. To reverse this judgment, the defendants below, who are plaintiffs in error, bring the case to this court. The facts of the- case appear to be substantially as follows: On June 4, 1877, William Crow executed to S. Lehman & Co. a chattel mortgage on certain wheat then growing in the field, to secure a debt to become due August 15, 1877, from Crow to Lehman & Co. The wheat was described in the chattel mortgage as follows: “35 acres of winter wheat now standing and growing on the southeast quarter of section No. 29, township No. 24, of range 1, east, in Harvey county, state of Kansas.” There was also a stipulation in the mortgage that the mortgagor was to remain in the possession of the wheat until default. This mortgage was filed in the office of the register of deeds of Harvey
The plaintiffs in error, defendants below, claim that the judgment of the court below should be reversed, for various reasons.
I. They claim that the mortgage is void because of an insufficient description. Now, we do not think it iá void for such reason. (Brown v. Holmes, 13 Kas. 482; Shaffer v. Pickrell, 22 id. 619; Mills v. Kansas Lumber Co., 26 id. 574, 578.)
II. The plaintiffs in error also claim that the mortgage became void as to the mortgaged property by reason of the changes made in such property — that is, they claim that the mortgage became void with reference to the wheat because the mortgagor was allowed to retain the possession of the wheat, to harvest it, to thresh it, to put it into a bin along with other wheat, and then to sell it. This we think'did not render the mortgage void. (Duke v. Strickland, 43 Ind. 494; Smith v. Jenks, 1 Denio, 580; White v. Brown, 12 U. C. Q. B. 477.) The mortgage was dated and executed June 4, 1877; the debt secured by it was to become due August 15, 1877; the mortgagor was to retain possession of the wheat until default; and the mortgage was duly filed for record, in the office of the register of deeds, on June 8, 1877. The mort
III. We do not think the garnishment proceedings had in this case can have the effect to bar the plaintiff’s present .action. Neither the plaintiff nor his firm (S. Lehman & Co.) was a party to the case in which the garnishment proceedings were had. It is true the plaintiff appeared before the justice of the peace in that case, and claimed that the debt for the wheat was due to him, and not to Crow; and the justice of the peace decided in his favor, and taxed the costs of the .garnishment proceedings to Cratty, the plaintiff in that case. But in the district court there was no litigation concerning the matter. The district court utterly refused to hear or receive anything from Lehman, the plaintiff in this case; and Muse, Spivey & Co. then appeared and admitted that they •owed the debt to Crow, and did not state any of the circumstances upon which the debt was founded. They did not inform the court with respect to any of the facts upon which Lehman claimed that the debt was coming to him. The •court then ordered that Muse, Spivey & Co. pay the amount of the debt into court, for the use of the plaintiff in that case, Cratty; and afterward they did pay the same into court, as ordered by the court. Now Muse, Spivey & Co. are not attaching creditors, or innocent purchasers of. mortgaged .goods for a valuable consideration, for at the time they allowed or procured the order of the district court to be made against them, requiring them to pay the amount of the debt •into court for the benefit of Cratty, they had full and complete knowledge of Lehman’s claim. Besides, they were ’bound to take notice of S. Lehman & Co.’s mortgage, and bound to know when they purchased the wheat that they were purchasing the property mortgaged to S. Lehman & Co. Orders made in garnishment proceedings can seldom be con-sidered as final adjudications. (Board of Education v. Scoville, 13 Kas. 18; Fitch v. Fire Ins. Co., 23 id. 366.) And the
The judgment of the court below will be affirmed.