Miltonvale State Bank v. Kuhnle

Decision Date07 January 1893
PartiesMILTONVALE STATE BANK v. F. KUHNLE
CourtKansas Supreme Court

Error from Cloud District Court.

THE opinion states the facts.

Judgment affirmed.

Pulsifer & Alexander, for plaintiff in error:

Within Farmers' Bank v. Bank of Glen Elder, 46 Kan. 376, and Howard v. National Bank, 44 id. 549, the defendant in error could have no right as against plaintiff in error, under the facts, by virtue of his chattel mortgages of April 17, 1886.

The names "Samuel M. Johnston" and "S. M Johnson" are not the same; the names "Johnston" and "Johnson" are not even idem sonans. Bull v. Franklin, 2 Spears (S. C.), 46; Mead v The State, 26 Ohio St. 505; Selman v. Orr, 12 S.W. 697.

The court erred in finding that the defendant in error had any right to the said five cows under his mortgage of April 15 1887, even if it was valid as against the objection heretofore made; for Kuhnle never claimed under it. There was no evidence to sustain a finding in favor of defendant in error for the five cows, under the mortgage of April 15, 1887.

Dawes & Durrin, for defendant in error:

Defendant in error held a mortgage on cattle, dated April 15, 1887. This mortgage was never renewed, and would therefore become void April 15, 1888, to subsequent purchasers without notice. Plaintiff in error took a mortgage on the same cattle September 7, 1887, while the above mortgage was yet alive. It being alive and valid at the time plaintiff in error took its mortgage, as to said mortgage so taken it could never die. Farmers' Bank v. Bank of Glen Elder, 46 Kan. 377.

If we are correct as to the above proposition, then when defendant in error took his mortgage of March 17, 1888, to secure the same debt upon the same cattle, he merely changed one mortgage for another, the security being the same as before. The moment one mortgage ceased to exist, the other took effect, and there was no interim in which defendant in error did not have the first lien upon the cattle. Defendant in error had a right to take another mortgage, and it did not affect plaintiff in error in the least.

GREEN, C. All the Justices concurring.

OPINION

GREEN, C.:

This was an action in replevin, brought in the district court of Cloud county by the Miltonvale State Bank against F. Kuhnle to recover eight cows and four calves, of the aggregate value of $ 200. The plaintiff claimed the property under a chattel mortgage made by Samuel M. Johnston to it on the 7th day of September, 1887, to secure the payment of $ 925, and filed for record the next day in the office of the register of deeds of Ottawa county, where the mortgagor resided and the property was then kept. The mortgage was kept alive by a renewal affidavit filed in the office of the register of deeds on the 22d day of August, 1888. The defendant claimed the same property under mortgages executed by the same mortgagor to him as follows: To secure the payment of $ 171, executed on the 17th day of April, 1886, which was properly filed for record three days later, but was never kept alive by a renewal affidavit. On the 15th day of April, 1887, S. M. Johnson executed a chattel mortgage to the defendant to secure the payment of $ 100, which was duly filed for record on the 18th day of April, 1887, but was never renewed. On the 17th day of March, 1888, Samuel M. Johnston executed a chattel mortgage to the defendant to secure the payment of $ 147.70, which was filed for record on the 27th of the same month, but was never kept alive. Upon the above facts, the court found that the defendant was entitled to a return of five of the cows, or $ 101, their value. The claim is made by the plaintiff in error that the mortgage of April 15, 1887, is wholly insufficient to furnish it with record notice of the existence of such mortgage, for the reason that the mortgagor's name under whom both parties claimed was Samuel M....

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