Gleason v. Wilson

• Decision Date: 09 April 1892
• Parties: WALLACE GLEASON, as Sheriff of McPherson County, et al., v. AMOS E. WILSON, as Administrator of the estate of D. W. Heath, deceased, et al
• Court: Kansas Supreme Court

29 P. 698

48 Kan. 500

WALLACE GLEASON, as Sheriff of McPherson County, et al., v. AMOS E. WILSON, as Administrator of the estate of D. W. Heath, deceased, et al

Supreme Court of Kansas

April 9, 1892

Error fro McPherson District Court.

THE opinion contains a sufficient statement of the case.

Valle Reyburn, and Frank G. White, for plaintiffs in error.

D. P Lindsay, M. P. Simpson, and W. J. Travis, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Prior to August 16, 1887, the firm of Watson & McCormick had been engaged in a general hardware and agricultural implement business in Marquette, McPherson county, in this state. To secure indebtedness, they executed chattel mortgages upon their stock in trade as follows, to wit: (1) Bank of Marquette, $ 470; (2) Baker Wire Company, $ 1,988; (3) Smoky Valley Bank, $ 1,054; (4) Wyeth Hardware Company, $ 402; (5) Townley Metal Company, $ 329.60. These mortgages were executed in the order recited, and the amounts purporting to be secured by these exceeded the value of the stock of goods mortgaged. A mortgage subordinate to the mortgages named was tendered to, and declined by, the Simmons Hardware Company. On January 10, 1888, an action on its claim for $ 424.65 was begun by the Simmons Hardware Company in the district court of McPherson county against Watson & McCormick, and a writ of attachment levied upon the stock of merchandise embraced in the chattel mortgages. The stock was sold by order of the district court in the attachment action, which ripened into judgment in favor of the Simmons Hardware Company. On the 14th of April, 1888, Heath, Darrah & Co. who composed the Smoky Valley Bank, began this action to recover $ 1,886.12, for the stock of merchandise taken and sold by the sheriff of McPherson county for the benefit of the Simmons Hardware Company, in the attachment proceedings against Watson & McCormick. They claimed both under their mortgage and under the chattel mortgage of the Baker Wire Company, assigned to them. On the trial of the action, it was agreed between the parties that if the plaintiffs were entitled to recover, the amount of their recovery should be, on their first cause of action, $ 832.12, and on their second cause of action, $ 69.19. At the close of the evidence, the court instructed the jury to return a verdict for the plaintiff below for the amounts agreed upon by the parties, as the defendants had failed to prove fraud. The defendants below excepted, and complain of various rulings of the trial court. Attached to the petition of the plaintiff below and made a part thereof, were copies of the chattel mortgages executed to the Baker Wire Company and to Heath, Darrah & Co. These mortgages were filed with the register of deeds of McPherson county, as required by law, several months prior to the attachment proceedings of the Simmons Hardware Company. The Baker Wire Company took immediate possession of the stock of hardware under their chattel mortgage, and placed Watson & McCormick in charge of the same as their agents.

It is contended that the trial court erred in holding the burden of proof was upon the defendants below. The amended answer of the defendants expressly admitted the...