Senner v. Hamblin
| Decision Date | 01 June 1898 |
| Docket Number | 278 |
| Parties | JOHN L. KEITH AND C. H. SENNER v. AMELIA L. HAMBLIN |
| Court | Kansas Court of Appeals |
Opinion Filed June 15, 1898
Error from Franklin district court; A. W. BENSON, judge. Affirmed.
Judgment affirmed.
J. W and W. A. DeFord, for plaintiff in error.
W. H Clark, and F. A. Waddle, for defendant in error.
Action commenced May 4, 1893, by the defendant in error, as plaintiff, to replevin a stock of groceries, etc., then in the city of Ottawa, Kan., under two chattel mortgages executed by C. H. Senner. The first of these, dated December 22, 1892, and given to Mrs. A. S. Fales to secure a note of that date for $ 200, was filed for record May 3, 1893, and was on that day assigned by Mrs. Fales to Mrs. Amelia L. Hamblin, the defendant in error; and the second, dated January 23, 1893, was given to Mrs. Hamblin to secure a note for $ 550. The notes were due in six and twelve months from their respective dates, and were given by Senner on account of loans of money obtained from the mortgagees. This money was used by him in paying bills for goods and otherwise in connection with his business. The mortgages contained the provisions usual to such instruments, except that in one Senner promised to "keep up said stock in good condition," and in the other agreed that in case he should be in financial difficulty he would notify the mortgagee, in order that she might file the mortgage for record.
On May 2, 1893, Senner, owing debts aggregating about $ 1400, executed a deed of assignment in the usual and proper form, by which he conveyed all his "lands and tenements, goods and chattels, notes, bonds, and accounts, and all property of every description belonging to said C. H. Senner, and liable for the payment of his debts," to J. L. Keith, assignee, in trust for the benefit of his creditors. The deed of assignment was recorded at eleven o'clock A. M. on the day of its execution, prior to the recording of either of the mortgages. The assignee took immediate possession of the goods.
To plaintiff's petition the defendants Keith and Senner answered jointly with a general denial of the allegations of the petition, and prayed judgment that the goods be returned to Keith. None of the pleadings in any wise intimate that Keith was or purported to be assignee, although that question seems to have engaged the attention of the trial court.
After January 23, 1893, Senner purchased on credit from wholesale dealers nearly $ 600 worth of goods and the accounts therefor remained unpaid at the date of the assignment. Besides these accounts and the debts secured by the mortgages, he owed less than $ 100.
At the time the deed of assignment was filed, the assignor delivered to the clerk of the district court an unverified schedule of his liabilities, and it was not until July 2, 1893, that his affidavit was written thereon, verifying the same. At the date fixed for the creditors' meeting no assignee was chosen, and on July 9, 1893, the district judge appointed Keith as assignee. He thereupon duly qualified and has since purported to act as such assignee. After obtaining possession of the goods by replevin, the plaintiff sold the same for $ 400 in cash.
The court concluded as a matter of law that the assignment was void as to the creditors of the assignor, for the reason that it appeared the latter had fraudulently retained the accounts due him for goods sold, and also had kept some other property. As the findings made by the court indicate that the assignor's wrongful acts were without the knowledge or consent of the assignee, we think this conclusion hardly tenable on the grounds stated. The court also held that the mortgages, while void as to the creditors, were valid as between the parties, and not subject to attack by the assignee; and that the plaintiff was at the commencement of the action entitled to the possession of the property in controversy. Judgment was accordingly entered for the plaintiff.
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