No. 639 | Kan. Ct. App. | Jan 4, 1900
The opinion of the court was delivered by
Defendants in error were the owners of about six acres of land, upon which was a plant for the manufacture of vitrified brick. On the 15th of March, 1894, they leased the land to John Gaffney, together with the plant and machinery thereof, and authorized him to take clay from the land and manufacture bricks therefrom for a certain agreed rental, payable monthly. By this contract Gaffney mortgaged to them certain machinery of his, the clay granted to him by the lease, and the bricks to be made therefrom. This instrument was filed with the register of deeds on the 23d of March, 1894, and remained on file in that office in conformity with the statute relating to chattel mortgages. Subsequently the plaintiff in error obtained a contract from the city of Atchison to pave one of its streets, and entered into an arrangement with Gaffney by which he was to furnish bricks from this plant, delivered by him upon the street to be paved, for which he was to receive five dollars per thousand and one-half of the profits of the contract for paving. Plaintiff in error was to make certain advances to Gaffney to enable him to make and burn the bricks. On the 10th of November, 1894, plaintiff in error purchased from Gaffney and paid him full value for the bricks in controversy herein with other bricks in the same kiln,
The specifications of error are :.
(1) That the mortgage was invalid as against the plaintiff in error as a bona fide purchaser or creditor; (2) that the court erred in holding the instrument to be a mortgage or conveyance intended to operate as a mortgage of personal property within the statute, so as to give constructive notice of the lien thereby created by being filed in the x’egister of deeds’ office under the provisions of the statute ; (3) that the court erred in holding that an instrument indorsed by the plaintiffs with the word “ lease,” and further indorsed so as to show that the plaintiffs were lessors, by which means the register of deeds deposited the same in a place where mortgages would not be looked for in the
The first and fourth assignments seem to cover the same ground, or rather, in making the fourth assignment, counsel for plaintiff in error attempted to cover the grounds contained in the other three.
It is very clear from the reading of the contract itself that the parties intended it to operate as a mortgage upon the property described therein, the description being sufficient. The terms of the instrument creating the lien are in effect a chattel mortgage. The statute in relation to filing chattel mortgages in order to impart constructive notice was complied with by the plaintiffs. It appears from the agreed statement of facts that the register of deeds entered the same upon the chattel-mortgage record. However, in doing so, he reversed the order of the parties and called the grantor the grantee and the grantee the grantor. It appears further from the agreed statement of facts that he placed it in a pigeonhole designated with the initial letter of the mortgagee instead of the mortgagor. The intention of the statute is clear that the mortgage itself, and not any record made by the register of deeds, is the thing which gives notice to interested parties of the existence of a
As to the. remaining question, whether Gaffney had such title or interest in the property that he could make a valid mortgage, we have arrived at a solution thereof with some hesitancy, but it seems to us that the conclusion reached by the tidal court is the correct one. Counsel for plaintiff in error relies mainly upon the decision of the supreme court in the case of Long v. Hines, 40 Kan. 216" court="Kan." date_filed="1888-07-15" href="https://app.midpage.ai/document/long-v-hines-7887472?utm_source=webapp" opinion_id="7887472">40 Kan. 216, 220, 16 Pac. 339, 19 Pac. 796. By that decision it has become the settled law of Kansas that crops — the products of the farm other than the natural product thereof — not sown at the time of the execution of the mortgage, have no such existence actually or potentially as will support a mortgage thereof.
It is argued in this case that the bricks for the conversion of which a recovery is sought had no actual or potential existence, and therefore the case comes within the rule laid down in Long v. Hines, supra. We cannot agree with counsel in this contention. The clay from which the bricks were to be made, as well as the bricks, were specifically mortgaged by Gaffney to secure the indebtedness which is the basis of this suit. The crop of corn in controversy in the case of Long v. Hines was a mere possibility coupled with no present interest. In this case, the bricks, the subject of the controversy, are the immediate product of the clay which Gaffney was licensed to take and remove from the ground and use in the operation of the plant, so that .he had a present interest in the property pledged. The production of the bricks was a possibility, coupled with a present interest in the material
It follows that the judgment of the district court was correct, and it is therefore affirmed.