66 P. 618 | Kan. | 1901
The opinion of the court was delivered by
This action was commenced in the district court of Cowley county by defendant^ in error-
“But all that he is required to set forth in his petition is that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto; that he is entitled to the immediate possession of the property; and that the defendant wrongfully detains the same from him.”
This principle was again approved by this court in Batchelor v. Walburn, 23 Kan. 733.
It is claimed that another statement made at another time, and signed by Salisbury & Co., was erroneously admitted because it was not shown that the plaintiffs had knowledge of it at the time they gave the credit, and that this statement had no influ
The defendants in the court below, besides Salisbury, were mortgagees in possession of the goods, and, as to them, it is contended that the court misinstructed the jury. The instruction complained of is as follows :
4. Bumen of proof. ‘ ‘ To entitle the plaintiffs to recover, it is necessary that they shall establish, by their evidence, the alleged fraud and fraudulent purpose of C. E. Salisbury in obtaining the goods, and if they have es-ta^ished this fact by the evidence, then it devolves upon the defendants to show by a pre*556 ponderarme of the evidence that they obtained possession of the goods from Salisbury in good faith, and for a valuable consideration, and without any knowledge or notice of fraud on the part of Salisbury to obtain the goods, and in disposing of them.”
It has generally been held that, where one purchases or obtains possession of property from a fraudulent vendee, the burden is upon him to show that he is a bona fide purchaser for a valuable consideration and. without notice. This is the rule that has been adopted in this state. (Dry-goods Co. v. Kahn, 53 Kan. 276, 36 Pac. 327; Wafer v. Harvey County Bank, 46 id. 597, 26 Pac. 1032.)
Mr. Tiedeman, in his work on Sales, says :
“The purchaser must take the goods in good faith and without notice of the defect in his vendor’s title. But not only must he be without knowledge of the defect, but he must not even know facts which are calculated to arouse the suspicion of a reasonably prudent man that everything was not right. The burden of proof is on the party who claims the protection of a bona fide purchaser.” (§329.)
Another contention is that the court erred in overruling their demurrer to the evidence. There was some evidence tending to establish every essential element of the plaintiff’s cause of action; it was therefore the duty of the court to submit the question to the jury. There are some other alleged errors, but they are not of sufficient importance to demand special attention.
The judgment of the court below is affirmed.