Wallace v. Mahaffey

• Decision Date: 07 January 1887
• Court: Kansas Supreme Court
• Parties: THE NORTHWESTERN FORWARDING COMPANY v. MAHAFFEY, SLUTZ & CO., et al

12 P. 705

36 Kan. 152

THE NORTHWESTERN FORWARDING COMPANY v. MAHAFFEY, SLUTZ & CO., et al

Supreme Court of Kansas

January 7, 1887

Error from Anderson District Court.

ACTION by The Northwestern Forwarding Company against Mahaffey Slutz & Co. and Joseph Slutz, to recover $ 1,707.30. Trial by the court at the January Term, 1885, and judgment for defendants. The plaintiffs bring the case here. The opinion states the material facts.

Judgment affirmed.

W. A Johnson, for plaintiffs in error.

L. K Kirk, for defendant in error Joseph Slutz.

VALENTINE J. HORTON, C.J., concurring.

OPINION

VALENTINE, J.:

This was an action commenced in the district court of Anderson county, on November 12, 1883, by George Y. Wallace and Charles W. Lyman, partners as the Northwestern Forwarding Company, against W. G. Mahaffey, J. C. Slutz and J. W. Slutz, partners as Mahaffey, Slutz & Co., to recover $ 1,707.30. On the same day an order of attachment was issued in the case, and levied upon the northeast quarter of section 22, township 21, range 19, in said county. On March 3, 1884, Joseph Slutz was made a party to the action, and he then filed his answer, setting forth a note and mortgage executed to himself on March 13, 1883, by J. W. Slutz, for $ 800. This mortgage covered the same land as that attached, and was recorded on March 13, 1883, one day after the attachment. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and upon the same rendered judgment in effect that the lien of the mortgage was prior and superior to that of the attachment; and of this ruling the plaintiffs, who are also plaintiffs in error, now complain.

It is admitted by the parties that the only question to be considered in this case is, whether the lien of a mortgage executed before the levying of an order of attachment, but not recorded until afterward, is prior to the lien of the attachment or not. It is claimed by the defendants that the lien of the mortgage is the prior lien, while the plaintiffs claim the reverse. The defendants, as authority for their claim, cite the case of Holden v. Garrett, 23 Kan. 98, and the numerous cases there cited; while on the other hand the plaintiffs cite, as authority for their claim, the following cases: Brown v. Tuthill, 1 Greene 190; Hopping v. Burnam, 2 id. 39; Parker v. Miller, 9 Ohio 108; Holliday v. Franklin Bank, 16 id. 534; White v. Denman, 1 Ohio St. 110; Bloom v. Noggle, 4 id. 45; Stowe v. Meserve, 13 N.H. 46; Carter v. Champion, 8 Conn. 549; Coffin v. Ray, 42 Mass. 212; The People v. Cameron, 7 Ill. 468; Tyrell v. Rountree, 32 U.S. 464.

The statutes under which the most of the foregoing decisions were made are not like ours, and therefore the decisions cannot be entirely applicable to this case; and the decisions made in the last four cases do not seem to have any application whatever to this case. The decisions made in Iowa and Ohio seem to be the nearest applicable to this case; but the correctness of these decisions has been questioned even in the states where they were rendered. The case of Brown v. Tuthill, 1 Greene 190, is the first case on the subject decided in Iowa; and the decision in 2 G. Greene follows the former decision. Afterward comes the case of Norton v. Williams, 9 Iowa 528, in which the court uses the following language:

"Appellants rely with much confidence upon the case of Brown v. Tuthill, 1 Greene 190. That decision was made under a statute containing this language: No instrument in writing that conveys any real estate shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the recorder for record.' (Rev. Stat. of 1843, ch. 54, § 31.) . . . Now we incline to the opinion that under the statute of 1843 the case of Brown v. Tuthill is against the current of the decisions."

After the decisions in Ohio, in the cases of Parker v. Miller and Holliday v. Franklin Bank, above cited, were made, the supreme court of that state, in the case of White v. Denman, 1 Ohio St. 110, 115, uses the following language with reference to this question, and with reference to these and other cases, to wit:

"If the question involved here had not been determined by adjudication in this state and affirmed and adhered to for a number of years, a majority of this court would feel constrained to take a different view of it."

In the case of Stowe v. Meserve, 13 N.H. 46, the mortgage was a chattel mortgage, and the court decided that it had no validity whatever.

The statute relied on by the plaintiffs is § 21 of the registry act, which reads as follows:

"SEC. 21. No such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record."

The argument made by the plaintiffs upon this statute seems to be almost conclusive. Their argument in brief is as follows: They were not parties to the mortgage in question, and had no actual notice thereof at the time of the levying of their attachment, and the mortgage at that time had not been filed for record; hence, under the statute, it was void as to them; and hence, when their attachment was levied, they obtained an attachment lien upon the entire estate of the mortgagor, just the same as if no mortgage had ever been executed. On the other side, however, a very strong argument is also made. On the other side, it is said that the mortgage, although not recorded at the time of the levying of the attachment, was not void; that it was good as between the parties, and valid as to all others who had actual notice thereof; that an interest in and a valid lien upon the mortgaged property had in fact passed from the mortgagor to the mortgagee, although the records did not show it; and that the attachment lien attached only to the real interest of the defendant held at the time in the mortgaged property, and did not attach to his apparent interest therein; and nearly all the authorities seem to sustain this claim of the defendants. Mr. Drake, in his work on Attachments, § 223, uses the following language:

"It is a well-settled principle, that an attaching creditor can acquire through his attachment no higher or better rights to the property or assets attached than the defendant had when the attachment took place,...