Schmidt v. Bender

Decision Date09 June 1888
PartiesPETER SCHMIDT et al. v. GEORGE BENDER
CourtKansas Supreme Court

Error from Rush District Court.

REPLEVIN by Bender against Schmidt and three others to recover the possession of two mules. Judgment for the plaintiff, at the May term, 1886. The defendants bring the case here. The opinion states the facts.

Judgment affirmed.

Maher & Osmond, for plaintiffs in error.

H. L Pestana, and Chas. A. Hiller, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.

This was an action of replevin, brought by George Bender against Peter Schmidt, George Laudner, James Lawson, and George Strobel, to recover the possession of two mules. George Bender and Reinhardt Borgert were both residents of Russell county, and on October 22, 1883, Borgert, being indebted to Bender in a considerable sum of money, executed a chattel mortgage upon the mules in question and other personal property, to secure the payment of the debt. The mortgage, which was duly filed in the office of the register of deeds, stipulated that the mortgagor should continue in the peaceable possession of the property until default should be made in the payment of the debt, or until the mortgagee should deem himself insecure. Afterward, Conradt Borgert, a brother of the mortgagor, obtained possession of the mules, and traded them to George Strobel, of Barton county, for a pair of horses. A search for the mules was instituted in Barton county by the mortgagor and mortgagee, and it was found that Strobel, to whom the mules were first traded, had sent them away from his place. It came to be known that the mules were mortgaged, and that an effort was being made to find them, and they were transferred from one to another of the defendants, apparently for the purpose of concealing them. The present action was then begun against all of the defendants, and under an order of delivery the possession of the property was regained. The trial resulted in a verdict and judgment in favor of Bender, and of this judgment the defendants below complain.

The first question presented relates to the validity of the chattel mortgage. It is insisted that the description of the property mentioned therein is wholly insufficient, and so vague and uncertain as to render the mortgage void. The property is described as "two brown mules, aged 8 and 12 years." In connection with this description the mortgage recited that the property was situate in the county of Russell and state of Kansas, and that the mortgagor should continue in the peaceable possession of the property until default was made, or the mortgagee should deem himself insecure; and the testimony showed that these were the only mules which the mortgagor had. A chattel mortgage should describe the property with reasonable particularity, but there is not that strictness and accuracy required that the plaintiffs in error insist upon. It has been often decided that a description in a chattel mortgage which will enable third persons, aided by inquiries which the mortgage itself suggests, to identify the property, is sufficient. Here the defendants are bound to know that the property was situate in Russell county, was in the possession of Reinhardt Borgert, and upon inquiry they would have ascertained that these were the only mules owned or possessed by Borgert. While the description given is not as full and certain as is desirable, yet under the rule mentioned and the decisions made, we think the description is not so uncertain and imperfect as to invalidate the mortgage. (Adams v. Hill, 10 Kan. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246; Mills v. Lumber Co., 26 id. 574; Muse v. Lehman, 30 id. 514; Griffiths v. Wheeler, 31 id. 17.)

It is next contended that under the evidence the description given in the mortgage did not fit the mules in controversy in respect to either color or age. There was some dispute in the testimony as to whether the mules were brown or bay in color. Some witnesses testified that both were brown, others that both were bay, and still others that one of them was brown and the other lighter in color, and might be called bay. Some of the witnesses who testified did not distinguish between brown...

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