Fuller v. Torson

• Decision Date: 01 March 1899
• Docket Number: 471
• Citation: 56 P. 512,8 Kan.App. 652
• Parties: D. L. FULLER v. T. M. TORSON
• Court: Kansas Court of Appeals

56 P. 512

8 Kan.App. 652

D. L. FULLER v. T. M. TORSON

No. 471

Court of Appeals of Kansas, Southern Department

March 1, 1899

Opinion Filed March 20, 1899.

Error from Lyon district court; W. A. RANDOLPH, judge. Reversed.

Judgment reversed and cause remanded.

H. D Dickson, for plaintiff in error.

Ed. S Waterbury, for defendant in error.

OPINION

MILTON, J.:

This action was commenced on March 17, 1894, by D. L. Fuller to recover the possession of certain personal property described in a chattel mortgage given by defendant Torson to John M. Campbell, and by the latter sold and delivered to the plaintiff, together with ten promissory notes of fifty dollars each, one of which matured November 1, 1893, and one each month thereafter. The property mortgaged was furniture and other articles used in connection with a restaurant and hotel located in the city of Emporia. The mortgage contained the following provisions:

"But if the said property be kept together and taken good care of, then it is understood that in case of unavoidable default in the payment of any note or interest the said John M. Campbell will not take possession under the mortgage until the maturity of the note coming due July 1, 1894. But in case of a sale or attempt to dispose of said property with (out) the consent of the said John M. Campbell, or the removal or the attempt to remove the same from the city of Emporia, or in case they are so used and kept as to materially depreciate their value, or in case the undersigned shall fail or refuse to keep the same insured for the benefit of the said Campbell, then all the sums hereby secured shall be and become due and payable, and said John M. Campbell or his assigns shall become entitled to possession of the property and to dispose thereof at public or private sale, and out of the proceeds pay the sum due and expenses of collection."

The petition alleged that the mortgaged property had not been kept together and had not had good care; that a portion thereof had been disposed of without the consent of the original mortgagee or of the plaintiff; and that the property had been so used and kept as materially to depreciate its value. The answer, besides a general denial, averred that the mortgaged property was exempt, the mortgagor being a married man, and part of the property being household goods, and another part implements for carrying on defendant's business, and that the mortgage was void because made without the joint consent of the defendant and his wife. The answer prayed for a return of the property of $ 500 in lieu thereof, and also for $ 500 damages for the wrongful taking of the same by the plaintiff. A jury was impaneled, and plaintiff presented his evidence. The defendant demurred to the evidence and the demurrer was sustained, and judgment entered in favor of defendant for costs.

The evidence showed that no part of the indebtedness...