Wolfley v. Rising

8 Kan. 297 | Kan. | 1871

The opinion of the court was delivered by

Brewer, J.:

Defendants in error brought an action of replevin to recover of plaintiff in error the possession of certain cattle. They obtained judgment, to reverse which this action is brought. They claimed title by virtue of a chattel mortgage, and as in our judgment the case hinges upon that instrument, we shall forbear any discussion of the many other questions presented by counsel in their briefs.

i. Principal and tlorized nai1 agent. “ y The bill of exceptions states that “it was proved” that these cattle were the property of the “Mutual Land Emigration and Cooperative Colonization Company,” of England; that Edward Granger Smith was the agent of, and a stockholder in, said company, and as such agent had the possession of these cattle. The note, to secure which the chattel mortgage to defendants in error was given, was upon the face of it an individual obligation of said Smith. There is nothing in the testimony which tends to show that the debt evidenced by this note was in point of fact a liability of the company. The mortgage is as follows: “ This indenture made * * * between E. G. Smith, agent -of English Colony in the county of Nemaha, * * * witnesseth: That the said party of the first part, in consideration * * * to him duly paid, has sold * * * with all the title and interest of the said party of the first pai*t therein. This grant is intended as a mortgage to secure * * * a certain note this day executed and delivered by the said E. G. Smith, * * *; the. overplus, if any there be, shall be paid * * * to the said E. G. Smith, his heirs, or assigns.” The mortgage was signed, “Edward Granger Smith.”

It does not appear from the testimony that defendants in error were ignorant of the true owners; that Smith represented himself to be the real owner; nor that he had, as such agent, any power to sell, mortgage, or in any way dispose of the cattle. . The defendants in error never had possession of the property. Under these circumstances we think no title or right of possession is shown in them. The property belonged to the company. No conveyance is shown from it; none that purports to be executed by it; none by any one authorized to mortgage its property. They claim the right of possession by virtue of a chattel mortgage executed by an individual not the owner, having, as appears, no right to convey, and attempting to secure an individual debt by a mortgage of the property of his principal. There is no presumption in favor of the authority of the agent. The party claiming title by virtue of his acts must prove his authority.

s. statute of unaecómpasession^pos A question arose on the trial also, as to the validity of a sale made by Smith to 'W'olfiey of the property in question. Said sale was made before tbe mortgage given to defendants in error, but it was unaccompanied by a delivery of possession. Upon this the court charged as follows: “That if they find from the evidence that the plaintiffs (Rising & Son,) acquired their lien on the cattle in controversy by contract with E. Gr. Smith on the 9th day of August, before the cattle had been delivered to defendant on his alleged contract of purchase, and without any knowledge of such transfer, they will find for plaintiffs.”

Here also we think was error. One of the most honest controversies in the law has been as to the effect which the retention of personal property by the vendor, after sale, had upon such sale. In this State the rule is settled by statute. .Grenl. Statutes, p. 501, § 3: “ Every sale or conveyance of personal property, unaccompanied by an actual and continued change of possession, shall be deemed to be void as against purchasers without notice, and existing or subsequent creditors, until it is shown that such sale was made in good faith and upon sufficient consideration.” In this case it appears from the bill of exceptions that “ it was proven” that Wolfley paid $123 on such purchase, which was a fair price for the cattle. There is abundance of testimony in the ease to make the question of good faith one for the jury to pass upon, and which ought not to have been taken from them by the court, as is done by this instruction. And if it appears that a sale is made in good faith, and upon sufficient consideration, though unaccompanied by a change of possession, the mere fact that a subsequent purchaser is ignorant of the sale will not avoid it in his favor. Of course, the sale made by Smith to plaintiff in error may convey no title to him, for the reasons indicated in the former part of this opinion; but that fact does not help the title of the defendants in error. Whether he have any right to the cattle or not, they must prove their right of possession before they can take them from him.

Eor these errors the judgment of the court below must be reversed, and a new trial awarded.

All the Justices concurring.