Dixon v. Tyree

• Decision Date: 11 April 1914
• Docket Number: 18,781
• Citation: 92 Kan. 137,139 P. 1026
• Parties: W. E. DIXON, Appellee, v. G. R. TYREE et al., Appellees, and HARRY MOOMAW, Appellant
• Court: Kansas Supreme Court

139 P. 1026

92 Kan. 137

W. E. DIXON, Appellee, v. G. R. TYREE et al., Appellees, and HARRY MOOMAW, Appellant

No. 18,781

Supreme Court of Kansas

April 11, 1914

Decided January, 1914.

Appeal from Sedgwick district court, division No. 1; THOMAS C WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. UNRECORDED CHATTEL MORTGAGE--Absolutely Void as Against Subsequent Mortgagee in Good Faith. Under section 5224 of the General Statutes of 1909 a chattel mortgage of an automobile, not recorded and not accompanied by immediate delivery and followed by actual change of possession of the property, is absolutely void as against a subsequent mortgagee in good faith, although the subsequent mortgage is not filed for record and possession is not taken under it.

2. SAME--Effect of Taking Subsequent Possession--Filing of First Mortgage. The fact that the holder of the mortgage first given obtains possession of the automobile from the owner of a barn where the mortgagor kept it, and records his mortgage before the other mortgage is recorded and without knowledge of its existence, does not validate his mortgage and give it priority.

3. SAME. To accomplish the result just stated the holder of the mortgage first given must take possession or file his mortgage for record by virtue of joint action with the mortgagor. In that event the mortgage has the effect of a mortgage given the day possession is taken or the instrument is filed for record, and is given priority by the statute over the unrecorded mortgage.

4. SAME -- Who are Subsequent Creditors of Mortgagor. The term "creditors" used in the statute referred to, which gives creditors the same status as subsequent purchasers or mortgagees in good faith, does not mean general creditors but only those who have perfected a right to appropriate the specific property, as, for example, by attachment or execution levy.

E. S. Hadley, of Wichita, for the appellant.

S. S. Hawkes, and T. V. McCluggage, both of Wichita, for the appellees.

OPINION

BURCH, J.

In September, 1911, Tyree purchased an automobile from Moomaw and gave a chattel mortgage to secure a portion of the purchase price. The mortgage was withheld from record until April 2, 1912. On March 2, 1912, Dixon loaned Tyree a sum of money and took as security a chattel mortgage on the automobile. Dixon had no knowledge of the Moomaw mortgage and withheld his own mortgage from record. During all this time the automobile remained in Tyree's possession. Tyree left the state, and on April 2 Moomaw found the automobile in a barn owned by L. K. Hoyt. Hoyt claimed that Tyree owed twenty dollars for rent and storage of the automobile. Moomaw paid this claim, took possession of the automobile, and filed his mortgage for record. Dixon then brought replevin. Moomaw had no knowledge of Dixon's mortgage until after the events of April 2. Dixon recovered and Moomaw appeals.

On final analysis the question presented is one of statutory interpretation. The statute involved reads as follows:

"Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident." (Gen. Stat. 1909, § 5224.)

Since Moomaw's mortgage had not been recorded and he had not taken possession of the automobile prior to March 2, his mortgage was absolutely void as against Dixon, who on that day became a subsequent mortgagee in good faith. Dixon then had a first lien, which he needed to protect only as against creditors and as against purchasers and mortgagees who became such subsequent to March 2. Moomaw did not belong to any of these classes. The term "creditors," within the meaning of this statute, includes only those who have perfected a right to appropriate the specific property, as, for example, by attachment or execution levy. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 627; Abernathy v. Madden, 91 Kan. 809, 139 P. 431.) Following March 2, Moomaw's rights rested entirely upon his chattel mortgage.

The fact that Moomaw took possession and filed his chattel mortgage for record in ignorance of Dixon's mortgage is of no avail. He did so not as a creditor and not as a purchaser or mortgagee who became such subsequent to March 2, but merely as the holder of an unrecorded mortgage which, on March 2, became of no legal effect so far as Dixon was concerned. Dixon rested under no necessity to record his mortgage except as to creditors and as to purchasers and mortgagees subsequent to him.

The fact that Moomaw...