Miller v. Krueger

• Decision Date: 08 April 1887
• Citation: Miller v. Krueger, 13 P. 641, 36 Kan. 344 (Kan. 1887)
• Parties: CHARLES MILLER v. MARTHA KRUEGER
• Court: Kansas Supreme Court

13 P. 641

36 Kan. 344

CHARLES MILLER v. MARTHA KRUEGER

Supreme Court of Kansas

April 8, 1887

Error from Ellis District Court.

REPLEVIN brought by Martha Krueger against Charles Miller. Judgment for the plaintiff at the November Term, 1884. The defendant brings the case here. The opinion states the facts.

Judgment affirmed.

D. C Nellis, J. D. McFarland, and Reeder & Reeder, for plaintiff in error.

J. G Mohler, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of replevin, brought by Martha Krueger against Charles Miller, for the recovery of goods, wares and merchandise alleged to be worth in the aggregate the sum of $ 10,193.12, and also for damages in the sum of $ 20,000. The defendant in his answer admitted that he detained the property in controversy, and that it was worth the sum of $ 5,153.96, but denied that he detained the same wrongfully or unlawfully; but, on the contrary, alleged that he detained it rightfully, by virtue of certain levies made by him upon the same as the sheriff of Ellis county, Kansas, under certain executions and orders of attachment issued against the property of Henry Krueger, the husband of the plaintiff, and that the property at the time of the levies belonged to Krueger. A trial was had before the court and a jury, and the jury rendered a verdict finding that the plaintiff was the owner of the property and was entitled to the immediate possession thereof, and that the same was worth $ 4,268.51; and upon this verdict judgment was rendered in the alternative that the plaintiff recover the property, or the said sum of $ 4,268.51, the value thereof, and the costs of suit. The defendant, as plaintiff in error, brings the case to this court for review.

Under the pleadings the principal questions presented to the jury for their determination were: First, to whom did the property belong? Second, what was the value thereof? But under the evidence the second question was so modified that it might perhaps be more properly stated as follows: What was the value of the plaintiff's interest in the property? Under the facts as shown by the pleadings and the evidence the plaintiff certainly had an interest in the property, but probably only to the extent of securing her for certain debts, a portion of which debts was due her, and the other portion she was liable for as a surety; and the defendant was entitled to all the remaining interest in the property. It is admitted by the parties that on January 24, 1884, Henry Krueger owned the property, and on that day he executed a chattel mortgage for the same to the plaintiff, who was then and still is his wife, to secure the sum of $ 4,268.51, which sum, it is claimed by the Kruegers, was due from Krueger to his wife; but the defendant denies that Krueger owed his wife that sum, and admits that he owed her only the sum of $ 4,101. On January 31, 1884, Krueger also sold, or at least gave a bill of sale for the property to his wife, the consideration therefor being the said sum of $ 4,268.51, and the further sum of $ 1,075, for which last-mentioned sum she was then his surety, and which sum she agreed to pay, making a total of $ 5,343.51 as the purchase-price. The executions and attachments were subsequently levied upon the property. The plaintiff claims the property under the foregoing chattel mortgage and under said sale, while the defendant claims the property under the foregoing levies. The defendant also claims that the foregoing chattel mortgage and the sale were and are fraudulent and void, and therefore that his title to the property under the aforesaid levies is paramount to that of the plaintiff under the mortgage and sale. From the testimony of Mrs. Krueger, given on the trial of the case, it is probable that this sale was intended by her to be only to secure her for the said sum of $ 5,343.51, and therefore that the sale and the bill of sale amount only to a chattel mortgage. Some of the evidence, however, tends to show that the sale was intended to be an absolute sale, and that Mrs. Krueger believed the property to be worth about $ 10,000, although in fact it was not worth more than about half that amount. The evidence also shows that Mrs. Krueger...