Ramsey v. Glenn

33 Kan. 271 | Kan. | 1885

The opinion of the court was delivered by

HoetoN, C. J.:

It is claimed on the part of the plaintiff in error, defendant below, that when Glenn paid off the note of one hundred and fifty dollars, executed on March 25, 1882, by Ramsey to Guilliams, the effect thereof was a full payment of the note, and hence satisfaction of the chattel mortgage given to-satisfy the same. Further, that when Glenn attached the mortgaged property of Ramsey, the interplea of Guilliams brought the parties before the justice on the validity and priority of the chattel mortgage and attachment of tlje property, and that the decision was in favor of the priority of the mortgage. Finally, that Glenn could not first apply the proceeds arising from the mortgaged property to the payment of his judgment and costs in the attachment action, and then apply the remainder upon the mortgage debt.

In answer, it may be said that when Glenn paid Guilliams for the note and mortgage of Ramsey on January 11, 1883, and took a written transfer and assignment thereof to himself, that this was an actual purchase of the note and mortgage; and hence the transaction was not a mere satisfaction of the note and mortgage.

While the interplea of Guilliams brought the parties before the justice of the peace to test the validity and priority of the mortgage and attachment, yet, after the appeal from the decision of the justice, the judgment was vacated. After Glenn purchased the note and mortgage, Guilliams abandoned his interplea, and no judgment was rendered in the circuit court that the chattel mortgage was paramount to the attachment. If we are to be controlled by the laws of Missouri, the mortgage had no validity against the attachment. (Wagner’s Rev. Stat. of Mo., p. 287, § 8; Foster v. Gillespie, 68 Mo. 644.)

On the other hand, if we assume that the laws of Missouri are the same as the laws of Kansas, then we must also decide that the attachment lien was prior to the chattel mortgage. (Lawsof 1879, ch. 68, § 9; Jones on Chattel Mortgages, § 177.) Guilliams did not take actual possession of the mortgaged property upon the execution of the mortgage, and did not deposit the mortgage in the office of the register of deeds until after the levy of the attachment. (Sec. 9, ch. 68, supra.) The property levied upon in Missouri was sold under the attachment proceedings instituted there. The judgment and costs were paid, and there was not sufficient of the proceeds to satisfy the chattel mortgage. As the remainder of the note was due and unpaid, Glenn was entitled, under his chattel mortgage, to the possession of the sorrel horse wherever he could find it. As Ramsey refused to deliver possession thereof, Glenn had no other recourse than to commence his action to recover by law the possession of the animal. The removal- of the horse from Missouri, by Ramsey, into Kansas, did not change the status or rights of property or the parties. As the owner of the note and chattel mortgage, Glenn had the right to follow the property to Kansas and take possession of it. (Denny v. Faulkner, 22 Kas. 97; Feurt v. Rowell, 62 Mo. 524; Smith v. Hutchings, 30 id. 380.)

Is is said that the court committed error in permitting Glenn to testify concerning the record of the actions in Missouri between him and Ramsey, and between him and Guilliams. It does not appear from the record that any exceptions were taken on the trial to the introduction of evidence, and it is too late, at this time, to present any objection thereto. All of the evidence appearing in the record was submitted to the court, by the parties, without exceptions, and upon this evidence the court could not do otherwise than find for the defendant in error, plaintiff below.

The judgment of the district court will be affirmed.

All the Justices concurring.