95 Kan. 774 | Kan. | 1915
The opinion of the court was delivered by
Herman F. Wogan brought this action against J. M. Sivey, C. A. Beck, The Citizens National Bank of Fort Scott, Kan., Anna Beck and
While there was testimony that the property was sold to Sivey by Beck an,d delivered into his possession prior to the execution of the Wogan mortgage and that Sivey made a payment of $118 to Beck, the jury has found that Beck was the real owner of the property when that .mortgage was executed and that he continued in the possession of the same until after the bank’s mortgage was executed. Substantially the same findings were made in respect to the property included in the Files mortgage. It appears that Beck brought most of the property from his farm to Fort Scott and exhibited it to the mortgagees, representing that he had sold it to Sivey and Wells. He not only joined in procuring the loans on these representations but he joined in the execution of the notes. It is conceded that both of the mortgagees, Wogan and Files, acted in good faith and upon the theory that the representations of the parties were true. From the findings of the jury it must be assumed that the property was not transferred but
Are they valid as to a subsequent mortgagee? A case which tends to support the claim of invalidity is Mackey v. Cole, 79 Wis. 426, 48 N. W. 520, 24 Am. St. Rep. 728. There an owner of horses named McPherson executed a mortgage on them in’ the name of Doyle and the mortgagee believed Doyle to be the true name of the mortgagor. The mortgage was placed on record. Shortly afterwards McPherson took the horses to another town and sold them to one who had no notice of the mortgage except such as might be derived from the mortgage which was on file and purported to have been executed by Doyle. The court held that one having no interest in property could not mortgage it, and that the filing of a mortgage executed by the owner under a
“In the absence of a showing of fraudulent purpose
Another case which is quite in point and in line with Brittain v. Blanchard, supra, was decided by the supreme court of Nebraska. There a- man calling himself M., not his real name, purchased a team of horses from a person who was unacquainted with him and gave a chattel mortgage on the team for the purchase price, which was duly recorded. Shortly afterwards the mortgagor offered the team for sale to another under the name of D., his real name, and upon an examination of the records and finding no mortgage on file as against D. the horses were purchased. Subsequently a controversy arose between the mortgagee and the purchaser, and it was held that where a person executes a chattel mortgage under a fictitious name and delivers it to the mortgagee who, without knowing that the name of the mortgagor was fictitious, records the mortgage in the proper county, the title to the property mortgaged vests in the mortgagee by the delivery of the mortgage and he may recover the property from another person to whom the mortgagor sells it under his true name after the mortgage was recorded. (Alexander Bros. v. Graves, 25 Neb. 453, 41 N. W. 290, 13 Am. St. Rep. 501.) The decision of the trial court holding the mortgages of Wogan and Files to be valid as against a subsequent mortgagee appears to be supported by Brittain v. Blanchard, supra, as well as the Nebraska case cited.
There is a further contention that the mortgages are invalid because of indefiniteness of description of the property. The greater part of the property described in the mortgages consisted of mules, and the age, color and names of most of them were given substantially as they were described in the mortgage of the bank. The farm implements were described according to the purpose for.which they were designed to be used. In the
In the Files mortgage it was recited that the mules therein described were purchased from Beck, and this afforded a clue towards identification and also to the fraud of Beck. We find no basis for the contention that the mortgagees are estopped to insist on the validity of the mortgages and to claim the property because of their failure to exercise reasonable diligence for their
The instructions, about which there is some complaint, appear- to be substantially consistent with the views expressed herein. The assignment of the note and mortgage to Wells gave him the standing and right held by Files, the assignor, and under the testimony the awards made to the mortgagees are deemed to be justified.
The judgment of the district court is affirmed.