Sams v. Binns

33 Kan. 199 | Kan. | 1885

The opinion of the court was delivered by

HoktoN, C. J.:

The plaintiff in error has mistaken his remedy. He did not present to the defendant in error, as as-signee, his chattel mortgage securing his claim at the time and place designated by the assignee for adjusting and allowing demands against the estate. He seems to have contented himself with merely proving up his note before the assignee, and obtaining an allowance of the same and his pro rata share thereof, relying upon the verbal promise of the assignee to pay his claim as a first or prior lien. If he had presented his chattel mortgage at the time his demand was allowed, he could then have obtained an order making his claim a first lien. (Comp. Laws of 1879, ch. 6, §§ 21, 22, 23.) If the assignee had decided against the priority of his chattel mortgage, he could then have appealed from his decision to the district court.

Again, plaintiff in error might have retained in his possession the property described in the chattel mortgage, and satisfied his claim by a sale of the goods as permitted by the statute. (Comp. Laws of 1879, ch. 68, §17.) At the time that the assignee presented his application for a discharge from his duties, all of the claims examined and approved by him had been paid their pro rata share from the proceeds of the sale of the property of the estate. The exceptions as filed by the plaintiff in error to his discharge were properly ignored by the district court. If the assignee obtained the mortgaged property from the possession of the plaintiff in error upon the agreement to pay him his claim in full, and has failed so to do, his remedy is other than by filing objections to his discharge.

The judgment of the district court will be affirmed. ”

All the Justices concurring.