Gagnon v. N.B. Brown & Co.

• Citation: 47 Kan. 83,27 P. 104
• Court: United States State Supreme Court of Kansas
• Decision Date: 09 July 1891
• Parties: OCTAVE GAGNON v. N. B. BROWN & CO

27 P. 104

47 Kan. 83

OCTAVE GAGNON v. N. B. BROWN & CO

Supreme Court of Kansas

July 9, 1891

Error from Cloud District Court.

REPLEVIN. Judgment for plaintiffs, N. B. Brown & Co., at the October term, 1888. The defendant, Gagnon, brings the case here. The facts are sufficiently set forth in the opinion.

Judgment reversed.

Theodore Laing, and J. J. McFarlin, for plaintiff in error.

A. H Ellis, W. W. Caldwell, and F. T. Burnham, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

On the 30th day of November, 1885, August Berthiaume executed and delivered to Octave Gagnon a chattel mortgage on a bay mare named "Fan," and a bay horse called "Tom," to secure the payment of the sum of $ 150 in one year from date. About the 9th day of November, 1886, Berthiaume executed and delivered to C. L'Ecuyer another mortgage upon the same property, to secure the payment of a note for $ 200, due on the 1st day of December, 1886; this mortgage was taken by Alcide L'Ecuyer, as agent and attorney for the mortgagee; and it is claimed by the plaintiff in error that the former knew that Gagnon had a mortgage upon this property. This mortgage was filed in the office of the register of deeds of Cloud county, on the 16th day of November, 1886. On the 29th day of November, 1886, the plaintiff in error took possession of both horses, under the mortgage, and on the same day filed his mortgage for record in the same county. On the 1st day of December, 1886, N. B. Brown & Co. purchased the note and mortgage executed to L'Ecuyer and demanded possession of the horses of Gagnon, which was refused. This action was brought on the 11th day of December, 1886, in the district court of Cloud county, by the defendants in error, to recover the property described in the mortgage executed to L'Ecuyer. The plaintiff in error offered to show that his mortgage was filed for record on the 29th day of November, 1886; the defendants in error objected, for the reason that the filing was of a date subsequent to the filing of the mortgage of the defendants in error. This objection was sustained. The court instructed the jury to return a verdict for the plaintiff below, and overruled the defendant's motion for a new trial.

The plaintiff in error contends that L'Ecuyer had actual notice of the Gagnon mortgage and took subject to it; that Brown & Co. got no better right by the assignment than they could have obtained had they taken a mortgage directly to themselves, on the day the assignment was made to them that on that day Gagnon had actual, open and adverse possession of the property, under his mortgage, having taken it on the 29th day of November, 1886, and also had his mortgage on file at that date. The mortgagor, Berthiaume, left Cloud county about the 16th day of November, 1886. Prior to his departure he delivered the horses in question to Alcide L'Ecuyer, who was agent of the mortgagee, C. L'Ecuyer, and it seems he delivered the property to Sifroy Berthiaume, who retained the horses until the 29th day of November, 1886, when they were taken from him without his consent, by Gagnon. There seems to have been some question as to the open possession of the property by the latter until the suit was commenced. It is claimed that the horses were kept out of sight a portion of the time, and there is some evidence to support this claim. It is argued by the plaintiff in error that L'Ecuyer acquired no adverse interest in the mortgaged property because of actual notice; that Brown & Co. had no specific interest in or lien upon the property prior to the time Gagnon filed his mortgage and took possession; therefore, Brown & Co. acquired no superior equity through L'Ecuyer, because there was none to give. They had no such equity in...