Rankine v. Greer, 38 Kan. 343

Rankine v. Greer

38 Kan. 343 | Kan. | 1888

Opinion by

Clogston, C.:

The question presented for our consideration is, are the conclusions of law and judgment sustained by the findings of fact as found by the court? If they are, then the judgment was properly rendered thereon for the defendant. At the time this action was commenced, Cady, the constable, was in possession of the property by virtue of' an execution regularly issued upon a judgment in favor of Mrs. Greer. This execution was properly levied upon the property in controversy, and by such levy all right of Brinzendine, the owner, was transferred to the judgment creditor; but this levy gave the constable no greater right to the possession of the property than Brinzendine had, and when demaud was made upon the constable for the property it was his duty to surrender it to the mortgagee, the plaintiff in this action. This surrender would have passed the property to the plaintiff with this additional burden or lien of the execution creditor, which would have the effect to transfer whatever right Brinzendine had in the proceeds after the sale of the property under the mortgage, and the satisfaction of the debt secured thereby to the execution creditor or to the constable who held the execution. Releasing the property to the plaintiff would not release the lien established by the levy, only so far as the possession of the property was concerned, but the lien would continue and bind the surplus proceeds to the amount of the judgment and costs. By the terms of the mortgage, plaintiff was entitled to the possession of the property upon default in the payment of the debt for which the mortgage was given, and all that it was necessary for the *350plaintiff to do before bringing the action was to demand the possession of the property under his mortgage. The mortgage having been given to secure a debt, and the debt having become due, no demand was necessary upon JBrinzendine for its payment, and consequently no demand was necessary upon the constable, except for the possession of the property.

Defendant also insists that, as it was shown that Ament had a first mortgage upon the property, which was also due, and gave him a prior right to its possession, for this reason plaintiff was not at the commencement of the action entitled to its possession. It is true that under a general denial in an action of replevin, the defendant may show that the plaintiff is not entitled to the possession of the property, that being the gist of the action; and to defeat plaintiff’s right of possession he may not only show that he is entitled to the possession himself, but may also show that the right of possession belongs to another, even if a stranger to the action; but this right of possession must be an absolute right — one not contingent or depending upon circumstances or conditions — and it would not be sufficient to show that there were other and superior outstanding mortgages against the property, although under some circumstances or conditions the mortgagee might be entitled to the possession of the property, even as against both plaintiff and defendant. This right of possession under a mortgage is a right to be claimed by the mortgagee. He might never claim the property; it might not be necessary for him to do so; the debt might be paid, or he might have other security or other property included in his mortgage sufficient to satisfy his claim, independent of this property. This being-true, we think that the fact that Ament held a mortgage on this same property is not sufficient to defeat the plaintiff’s right to recover its possession as against the defendant’s claim under the levy of the execution. He was entitled to the property as against the defendant and as against all the world until some other claimant asserted a better right.

Again, defendant insists that the plaintiff’s debt had nearly all been paid after the commencement of the action and be*351fore trial; and the court so found. The evidence upon which this finding was made was improperly received. The issue joined and the facts to be tried were whether or not the plaintiff was entitled to the possession of the property at the commencement of the action; and if after that, payment, or anything else, had occurred that would render plaintiff’s claim inoperative, it must be set up as a defense, and an application to the court showing such facts, leave to file a supplemental defense would have been given, and an issue would then have been presented. This was not done. The evidence was incompetent, and a finding or conclusion upon evidence improperly received on an issue not raised by the pleadings, will be disregarded by this court. We are therefore of the opinion that at the commencement of this action plaintiff was entitled to the immediate possession of this property as against the defendant.

It is recommended that the cause be reversed, and remanded to the court below, with an order that judgment be rendered on the findings of fact as found by the court, in favor of the plaintiff below, for the possession of the property and for costs.

By the Court: It is so ordered.

All the Justices concurring.