Long v. Hines

• Decision Date: 07 January 1888
• Citation: 40 Kan. 216,16 P. 339
• Parties: A. W. LONG v. WILLIAM HINES et al. [*]
• Court: Kansas Supreme Court

16 P. 339

40 Kan. 216

A. W. LONG v. WILLIAM HINES et al. ^[*]

Supreme Court of Kansas

January 7, 1888

Error from Miami District Court.

ON March 7, 1885, Daniel Hines executed and delivered to William and Joseph Hines, defendants in error, a chattel mortgage upon property described as follows: "Forty acres of growing flax, and forty-five acres of growing corn, on the southwest quarter of section 7, township 19, range 22, in Miami county." The consideration therein being to secure said William and Joseph Hines from loss by reason of their indorsement of two notes aggregating $ 300. Said chattel mortgage was duly filed for record on March 9, 1885. On October 21, 1885, plaintiff in error, as constable, levied upon forty-five acres of growing corn on the land above described, as the property of Daniel Hines, by virtue of an execution issued by a justice of the peace of the city of Paola, in said county, on a judgment duly rendered before said justice against Daniel Hines. On November 7, 1885, the defendants in error commenced this action of replevin in the district court of Miami county, against said constable for the possession of said forty-five acres of corn claimed by them as the corn described and named in the chattel mortgage from Daniel Hines to them. At the time of the execution of said chattel mortgage, neither the flax nor the corn mentioned therein had been planted. Afterward forty-five acres of corn were planted, and forty acres of flax sown. It was agreed that the corn mentioned in the chattel mortgage was the same corn which was afterward planted by Daniel Hines, and the same that was levied upon by execution, and that prior to the levying of said execution nothing had been done by said mortgagees toward taking possession of the corn and that nothing had been none by the mortgagor and mortgagees toward ratifying or making valid said chattel mortgage.

Trial by the court, at the February term, 1886, and judgment rendered in favor of the mortgagees for the possession of the corn. The constable brings the case here for review.

Reversed.

Thos M. Carroll, and W. H. Sheldon, for plaintiff in error.

W. T Johnson, for defendants in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

This was an action commenced by the defendants in error to recover possession of forty-five acres of corn claimed by them by virtue of a chattel mortgage executed before the corn described in the mortgage was planted or had any existence. Can this claim be upheld? We think not. A valid mortgage can only be given upon property which has an actual or potential existence; and corn not planted has neither an actual nor potential life; and being without life or existence, there could be no legal transfer, present or prospective; and no pretended transfer could operate upon the crop of corn after being grown; at least, not until after taken possession of by the mortgagees. In this case there was no claim of any change of possession. Section 9 of an act in relation to chattel mortgages is as follows:

"Every mortgage, or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds, in the county where the property shall then be situated, or if the mortgagor be a resident of this...