The First National Bank of Barnard v. Venard
| Decision Date | 07 May 1921 |
| Docket Number | 22,835 |
| Citation | 197 P. 877,109 Kan. 15 |
| Parties | THE FIRST NATIONAL BANK OF BARNARD, Appellant and Appellee, v. JESSE C. VENARD and ROSE HANI VENARD, Appellees and Appellants |
| Court | Kansas Supreme Court |
Decided January, 1921.
Appeal from Lincoln district court; DALLAS GROVER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. REPLEVIN BY MORTGAGEE--Property Wrongfully Retained by Plaintiff--Nature of Judgment to be Rendered. In an action of replevin where a mortgagee wrongfully seized the property of the defendant and retained possession of the same until after the trial of the action wherein the defendant claimed the value of the property only, a judgment not in the alternative but only for the value of the property so wrongfully seized and withheld is not substantially erroneous.
2. SAME--Chattel Mortgage Given for Purchase Money--Priority of Lien Over Claim of Exemptions. Where money is loaned for the purchase of property and a mortgage is executed by the purchaser upon it to secure the payment of the lien, it is to be regarded as a purchase-money mortgage, and the purchaser takes the property charged with the lien. The wife of the purchaser and mortgagor who did not sign the mortgage, cannot thereafter claim the property to be exempt as against the mortgage lien.
3. SAME--Purchase Money Borrowed from Third Party--A Purchase-money Mortgage. The mortgage to secure the purchase money, having been given to one who loaned the money rather than to the vendor, is nevertheless a purchase-money mortgage.
C. L Kagey, Omer D. Smith, both of Beloit, and E. A. McFarland, of Lincoln, for the appellant.
David Ritchie, of Salina, for the appellees.
Two actions in replevin were brought by the First National Bank of Barnard, against Jesse C. Venard and Rose Hani Venard, one to recover possession of tools and accessories used by Venard in conducting a garage and the other to recover an automobile. The plaintiff claimed the possession of the tools and appliances and accessories under a chattel mortgage, which was not signed by Mrs. Venard, and she defended on the ground that the property was exempt under the following statutory provision:
"The necessary tools and implements of any mechanic, minor or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value."
The verdict of the jury was in favor of the defendant, Rose Hani Venard, of which no complaint is made, but error is assigned on the action of the court in adjudging that defendant should have judgment for the value of the property instead of rendering a judgment in the alternative giving the plaintiff the option of returning the property wrongfully taken.
In her answer Mrs. Venard alleged that she had taken possession of the property under a mortgage executed to her prior to the commencement of the action, and that plaintiff had wrongfully seized and converted the same to its own use. She did not ask for a return of the property but prayed judgment for the value of the property so converted. The statute relating to a judgment in replevin provides:
Ordinarily judgments in replevin are rendered in the alternative, and in an early case it was held that:
"When the property has been delivered to the plaintiff, and the defendant claims a return thereof, if the judgment be for the defendant, it must be in the alternative for a return of the property or for the value thereof in case a return cannot be had."
The statute, as will be observed, is not mandatory in requiring a judgment in the alternative, but it provides that it may be so rendered. It depends upon the issues formed and the circumstances of the case whether an alternative judgment is necessary. It would be idle to provide for the return of property shown to have been destroyed or which could not be returned in specie, and other instances may be conceived of where the order of a return would be futile. It has been held that a judgment for plaintiff for the value of the property without the alternative was not erroneous where the defendant retained the possession of the property and had placed it beyond his control and power to return it. ( Clouston v. Gray, 48 Kan. 31, 28 P. 983.)
In another case it was held that where a mortgagee seized property under a writ of replevin and retained possession of the same up to the time a judgment in his favor was rendered, there was no necessity of rendering an alternative judgment. (Colean v. Johnson, 82 Kan. 655, 109 P. 403.)
In still another case where the plaintiff had taken and converted a stock of goods to its own use, the judgment in favor of the defendant which had a lien on the goods was not in the alternative, but only for the value of the interest held by the bank, and upon review it was held that as the plaintiff had taken and converted the goods to its own use there was no substantial error in the judgment. (Lehman-Higginson Grocer Co. v. McClain, post, p. 20, 109 Kan. 20, 64 P. 1029.)
As we have seen, the statute is permissive, leaving it to the court to determine whether established facts and justice require the rendition of an alternative judgment; and, as authorities cited by plaintiff show, there are cases in which a refusal to enter such a judgment would be material error. Our statute broadened the common-law action in replevin, adding the cumulative remedy of giving the party from whom property is wrongfully taken and detained the right to ask the value of such property. It is a provision for the benefit of the wronged party and not for the one who commits the wrong. This feature of replevin was considered in Johnson v. Boehme, 66 Kan. 72, 71 P. 243, where an action for conversion after a judgment for costs in a prior action for replevin without more had been rendered in favor of the defendant. It was there said:
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