The Ord National Bank v. Massey

• Decision Date: 01 January 1892
• Citation: 30 P. 124,48 Kan. 762
• Parties: THE ORD NATIONAL BANK v. P. J. MASSEY, as Special Constable
• Court: Kansas Supreme Court

30 P. 124

48 Kan. 762

THE ORD NATIONAL BANK v. P. J. MASSEY, as Special Constable

Supreme Court of Kansas

January 1, 1892

Error from Wichita District Court.

THE opinion states the case.

Judgment reversed.

A. P Barker, and Harwood, Ames & Kelly, for plaintiff in error.

C. H Coan, for defendant in error.

SIMPSON C. All the Justices concurring

OPINION

SIMPSON, C.:

The material facts are that on the 23d day of April, 1888, one George W. Hale, then a resident of Garfield county, Nebraska executed to one J. S. Beauchamp, to secure the payment of a promissory note for $ 400, a chattel mortgage, describing the mortgaged property in these words: "One dapple-gray stallion, five years old, worth $ 400; twelve head of Oregon mares, worth $ 600. The above-described chattels are now in my possession, are owned by me, and free from all incumbrances in all respects." This mortgage was duly filed for record, according to the laws of the state of Nebraska, in the county in which the property was situate, and the note and chattel mortgage, subsequent to the record, were assigned to the plaintiff in error. Early in December of 1888, the property mortgaged was removed to Wichita county, in this state. On the 3d day of December, 1888, Hale executed a chattel mortgage to one Fred. L. Harris, to secure a note for $ 339.34, upon property described as follows: "One black mare eight years old, worth $ 125, one bay horse six years old, worth $ 100, one sorrel horse eight years old, worth $ 100, five yearling mares worth $ 250. The above-described chattels are now in my possession, are owned by me, are free from all incumbrances in all respects." The plaintiff in error became the owner of this mortgage. Both of these mortgages were filed February 22, 1889, in the office of the register of deeds of Wichita county, where Hale resided and kept the property. The horses and mares described in these chattel mortgages were taken possession of by the defendant in error, as a special constable, to satisfy a judgment against Hale. The mortgagee demanded possession, and was refused, and this action in replevin was commenced on the 5th day of March, 1889. At the trial both the mortgages and notes were admitted in evidence, and proof was made that they had not been paid or discharged, and the property was identified as being that conveyed by the mortgages by the evidence of Hale, the mortgagor. Proof of demand on the special constable was also made. The defendant in error filed a demurrer to the evidence of the plaintiff in error, and this was sustained. The...