Ford v. Nye

• Decision Date: 09 February 1889
• Parties: C. H. DEFORD, as Sheriff of Greenwood County, v. IRA P. NYE
• Court: Kansas Supreme Court

20 P. 481

40 Kan. 665

C. H. DEFORD, as Sheriff of Greenwood County, v. IRA P. NYE

Supreme Court of Kansas

February 9, 1889

Error from Greenwood District Court.

REPLEVIN. Judgment for plaintiff at the May term, 1885. The defendant brings the case to this court. The opinion states the facts.

Judgment affirmed.

T. L Davis, for plaintiff in error.

D. B Fuller, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action of replevin, brought by Ira P. Nye against C. H. DeFord, to recover the possession of a stock of merchandise. The facts are substantially as follows: On and before January 13, 1885, one J. C. Tomlinson owned and was in the possession of the merchandise in controversy. At the same time, he was indebted in a large amount to various parties, and among others to a creditor represented by Ira P. Nye. He was pressing the payment of the claim, and demanding either cash or the possession of the goods at once, and was about to bring an attachment suit on his claim, which amounted to $ 552. Tomlinson gave Nye a chattel mortgage upon his goods to secure the claim, and Nye at once took possession of the goods under the mortgage. Immediately after the execution of this mortgage, Tomlinson executed other chattel mortgages upon the same goods to secure the claims of other creditors, and Nye, the defendant in error, was made agent of all the mortgagees. In the afternoon of January 13, 1885, being the same day on which the mortgages were executed, Tomlinson executed a deed of assignment, by which he assigned and transferred to Ira P. Nye, for the benefit of his creditors, all of the stock of goods which remained after satisfying the mortgages that he had theretofore given. On January 16, 1885, while the goods were in the possession of Nye, three creditors of Tomlinson brought actions upon their respective claims, in which attachments were issued and levied upon the goods by the plaintiff in error, who was the sheriff of the county. On January 20, 1885, Nye brought this action, and by virtue of a writ of replevin recovered possession of the goods. The cause was tried at the May term, 1885, by the court without a jury, and it was found that the plaintiff was entitled to the immediate possession of the goods in controversy; and also, to $ 75 as his damages for the wrongful detention of the same, and judgment was accordingly given.

As a ground of error it is insisted that the chattel mortgages and the deed of assignment constituted one and the same transaction, amounting to a general assignment, and is consequently void. While the chattel mortgages and the deed of assignment were executed on the same day, they cannot be regarded as a single transaction. There is testimony showing that the mortgages were completed about nine or ten o'clock in the forenoon, and that the assignment was not made until late in the afternoon of the same day. The court specially finds that the mortgages under which Nye held the goods in controversy were valid and secured a just indebtedness which was all past due. When they were made, Tomlinson had complete dominion over the property, and had the unquestioned right to prefer one creditor over another; and this was substantially what was done. "It is well settled that an insolvent, as long as he retains a jus disponendi of his property, may appropriate it to the payment of his debts, and may prefer creditors. He may use all his property this way, or he may so use a part, and make a general assignment of the remainder." (Bailey v. Kansas Mfg. Co., 32 Kan. 73, 79.) And further along in the same opinion it is remarked that "there is nothing in the assignment act that prohibits the execution of chattel mortgages, or...