Lanoue v. The Concordia Milling Company

• Citation: 241 P. 118,119 Kan. 834
• Decision Date: 05 December 1925
• Docket Number: 26,267
• Parties: A. M. GOSSELIN and EDMOND LANOUE, Partners, etc., Appellees, v. THE CONCORDIA MILLING COMPANY, Appellant
• Court: Kansas Supreme Court

241 P. 118

119 Kan. 834

A. M. GOSSELIN and EDMOND LANOUE, Partners, etc., Appellees, v. THE CONCORDIA MILLING COMPANY, Appellant

No. 26,267

Supreme Court of Kansas

December 5, 1925

Decided July, 1925.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CHATTEL MORTGAGES--Release of First Mortgage--Rights of Junior Mortgagee. When two persons have separate mortgage liens upon personal property, the fact that one of them releases his lien does not destroy the lien of the other.

2. SAME--Generally. In an action to enforce a mortgage on growing wheat, various assignments of error considered and held not to be of substantial merit.

Park B Pulsifer and Clyde L. Short, both of Concordia, for the appellant.

A. M. French, of Concordia, for the appellees.

OPINION

HOPKINS, J.:

The action was one to enforce a chattel mortgage upon growing wheat. The plaintiffs prevailed and defendant appeals.

Plaintiffs are merchants at Aurora; defendant, a milling company at Concordia. Lewis Hubert, tenant on a farm of H. C. Duff, gave two mortgages on forty acres of wheat, one to the First State Bank of Aurora, a second to the plaintiffs. When the wheat was harvested, Hubert and Duff had a talk with the cashier and manager of the bank, and was told to haul the wheat, dispose of it and account to the bank. The banker testified:

"Q. You make no claim to the proceeds of the wheat? A. No.

"Q. Since your talk with Lewis Hubert and Duff in the bank, you have claimed no lien upon the proceeds of the wheat? A. No; we never have upon the proceeds of the wheat; we claimed nothing, but we knew nothing of the transaction except as the evidence shows.

"Q. As cashier, have you ever attempted to claim any interest in the lien? A. Not interested in the proceeds of the wheat.

"Q. Then so far as your mortgage is concerned, you will not look to the lien on the wheat but to the other property for the payment? A. Yes."

The wheat was sold and delivered to the defendant. The court concluded:

"That at the time the defendant purchased the wheat the plaintiffs held an unsatisfied chattel mortgage upon the same in the sum of $ 543.78 and accrued interest; that the first mortgage on said wheat had been verbally released and that the plaintiffs' mortgage was duly recorded and was constructive notice to the defendant of plaintiffs' lien and that the plaintiffs should...