Rankine v. Greer

• Decision Date: 07 January 1888
• Citation: 38 Kan. 343,16 P. 680
• Parties: N. J. RANKINE v. J. P. GREER, as Administrator of the estate of E. J. Cady, deceased
• Court: Kansas Supreme Court

16 P. 680

38 Kan. 343

N. J. RANKINE v. J. P. GREER, as Administrator of the estate of E. J. Cady, deceased

Supreme Court of Kansas

January 7, 1888

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Shawnee Superior Court.

ACTION brought by the plaintiff in error to recover the possession of two mares claimed by her by virtue of a chattel mortgage given to her by one Brinzendine, the owner. The action was brought against E. J. Cady, who was a constable, and held and claimed possession of the property in controversy by virtue of an execution issued against Brinzendine. Trial by the court at the April Term, 1886, and judgment rendered for the defendant. The plaintiff has brought the case to this court. The court below made findings of fact and conclusions of law as follows:

"FINDINGS OF FACT.

1. On March 27, 1885, one David Brinzendine borrowed from the plaintiff $ 500, to secure which he executed to and in favor of the plaintiff his chattel mortgage of that date, of and upon one roan mare and one brown mare, together with a lot of other personal property, consisting of one horse, several cows, calves, a cultivator, a wagon, plow, etc.

"2. Said mortgage recited that the principal indebtedness was $ 550, and it was made payable thirty days from the date of the mortgage, with interest at 12 per cent. per annum after maturity; and it provided that the mortgaged property should 'remain in the possession of said Brinzendine until default is made in the payment of the debt and interest as aforesaid.'

"3. At the time of executing said mortgage, Brinzendine made his affidavit, which was indorsed upon the back of said mortgage stating among other matters that be was the owner of the property mentioned in the mortgage, and that there were no chattel mortgages or liens upon said property except one chattel mortgage for $ 125, in favor of Lockard &amp Gillette, and one other chattel mortgage for $ 100 in favor of C. W. Ament. This affidavit was sworn to before James L Rankine, a notary public.

"4. James L. Rankine, the notary public mentioned in the last finding of fact, then was and still is the husband of the plaintiff, and the entire business respecting said loan and the taking of said mortgage was transacted between said Brinzendine and said James L. Rankine, as agent for the plaintiff, and said James L. Rankine bad actual knowledge at the time of taking said mortgage of the existence of the two mortgages mentioned in said affidavit.

"5. The mortgage so taken for plaintiff by her agent was duly filed for record on the day of its date, March 27, 1885. The mortgage to C. W. Ament for $ 100 was executed on the 26th day of March, but was not filed for record until the 14th of April, 1885. It does not appear when or whether the Lockard and Gillette mortgage was recorded, nor is there any claim or defense in this action grounded upon such instrument, in whole or in part.

"6. On the 27th of March, 1885, one Elizabeth Greer, as plaintiff, recovered a judgment against said David Brinzendine, as defendant, before W. R. Hazen, Esq., one of our justices of the peace, for $ 110.75 debt, and $ 9.45 costs. On the 16th of April following, a writ of execution was issued on said judgment directed to E. J. Cady, the defendant in this suit, as constable. Said writ of execution was returned by Cady to said justice on the 11th day of May following, and from his return the following facts are shown: Cady received said writ April 16th; the next day he delivered a copy thereof to Brinzendine, the judgment debtor; and he also levied upon and took into his possession the roan mare and the brown mare mentioned in the first of these findings of fact. On the 22d of April he advertised said property for sale by posting four notices as required by law, said sale to take place on the 5th day of May. On the 1st day of May the plaintiff in this action, N. J. Rankine, replevied the two mares from him; whereupon Cady gave a redelivery bond and retained possession of the roan mare, and the brown mare was delivered to said Rankine; and on the 5th of May, and before the hour fixed for selling said property, the roan mare was taken from Cady's possession on a writ or order of replevin commenced against him at the suit of C. W. Ament; and with these facts indorsed thereon, said execution was returned by Cady unsatisfied.

"7. It is not shown that the plaintiff made any demand of Brinzendine, or of anyone for him, after the mortgage debt owing to her became due, that said debt be paid; nor was there any testimony offered tending to show such fact; nor did the defendant at any time, or anyone for him, pay or tender, or offer to pay plaintiff the balance owing to her on said Brinzendine mortgage.

"8. The mortgage held by Ament stated that the debt due him from Brinzendine was payable I in thirty days' from the date of the mortgage, (26th March,) and it provided that Brinzendine should remain in possession of the mortgaged property 'until default is made in the payment of the debt and interest aforesaid.' Said debt became due April 25th.

"9. James L. Rankine and C. W. Ament, at the time of taking said mortgages from Brinzendine, were money-lenders and brokers, doing business in Topeka, not as partners, but each separately on his own account.

"10. On the first day of May, 1885, and after due demand had been made by the plaintiff for the possession of said roan mare and said brown mare, this action was commenced in this court to replevy said two mares from the defendant Cady. The petition and affidavit for the order of delivery both state that the plaintiff bases her title to the property upon the chattel mortgage given by Brinzendine to her, already mentioned. As shown by Cady's return on the execution mentioned in the 6th finding, the plaintiff obtained the brown mare upon the order of delivery, while Cady gave a redelivery bond and retained the roan mare. After said mortgage debt became due, and prior to the commencement of this action, Brinzendine had paid the plaintiff the whole of said mortgage debt except the sum of $ 115, and since the commencement of this action Brinzendine has paid the plaintiff $ 80 more on account of said mortgage debt, leaving due the plaintiff at the present time $ 35 only; and at the times of receiving such payments the plaintiff released to Brinzendine some portion of the mortgaged property, and all of said property was so released except the two mares replevied in this action.

"11. Since the commencement of this action the plaintiff redelivered to Brinzendine said brown mare to be kept for her, and Brinzendine afterward removed from the state, taking the mare with him; and such removal was without the knowledge or consent of plaintiff.

"12. On the 5th day of May, 1885, said C. W. Ament commenced his action of replevin against said E. J. Cady as defendant before H. S. Clark, Esq., one of our justices of the peace, which action was tried and determined by said justice and was afterward removed from before said justice by an appeal taken by defendant Cady; and said action is now pending and undetermined in the district court of this county. Ament grounded his claim or title to said roan mare upon the chattel mortgage given to him by Brinzendine, hereinbefore particularly mentioned. Subsequent to the appeal taken by Cady to the district court Brinzendine paid Ament his mortgage debt, and thereupon Ament delivered to Brinzendine said roan mare, and said animal was taken away by Brinzendine when be removed from the state. On the 15th of November, 1885, Ament entered upon the records of chattel mortgages in the register's office of this county a release of his said mortgage; and be...