Whitson v. Griffis

• Decision Date: 07 April 1888
• Citation: 17 P. 801,39 Kan. 211
• Parties: C. C. WHITSON v. J. W. GRIFFIS, as Sheriff of Chase County
• Court: Kansas Supreme Court

17 P. 801

39 Kan. 211

C. C. WHITSON v. J. W. GRIFFIS, as Sheriff of Chase County

Supreme Court of Kansas

April 7, 1888

Error from Chase District Court.

ACTION brought by Whitson against Griffis, as sheriff of Chase county, to recover the possession of a stock of goods in which plaintiff alleged that he had a special ownership. At and before December 28, 1885, one M. E. Breese was the owner and in possession of a store at Cottonwood Falls, in said county, upon which day she executed to the plaintiff a chattel mortgage on all the stock of goods and fixtures contained therein, to secure the payment of a promissory note executed to him for the sum of $ 900, payable three months after date. Said chattel mortgage had a condition in it as follows:

"That the said party of the first part, M. E. Breese, shall remain in possession of the property hereby conveyed, and may sell and dispose of the same or any part thereof, upon the following conditions, to wit: That she shall keep an account of all sales made by her each day, in a book kept for that purpose, and that prior to the close of banking hours in each day shall deposit in the Cottonwood Falls or Chase County National Bank, to the order of the second party, the proceeds of all sales made up to the time of deposit, less such amounts of necessary change as may have to be kept on hand for the purpose of the trade after the hours of deposit; the amounts so retained each day shall be shown by a cash book the first party shall have a right to obtain from the proceeds of such sales aforesaid, the necessary expenses attending the selling and care of said property, including store rent, fire, lights, fuel, clerk hire, and also reasonable living expenses of said party of the first part and her family, while she devotes her time to the business of selling and disposing of said property, for the purpose of paying said indebtedness. And for the purpose last mentioned as aforesaid, said party of the first part shall have the right to draw upon the funds arising from such sales, subject to the approval of the second party, and such draft or order shall state the purpose for which it is drawn, upon its face that whenever it is necessary to purchase any articles or staple goods, from time to time, in order to sell the other goods, a check or order may be drawn, with the consent of the second party, to pay for such goods; when purchased, shall be kept separate from the other goods, and the proceeds from the sale of these goods to be deposited to the credit of said account to the amount of the sum drawn to pay for the same."

Under the provisions of this mortgage Mrs. Breese continued to hold possession of the goods until February 24, 1886, when the defendant levied upon and took possession of said goods as the property of M. E. Breese, by virtue of an order of attachment issued out of the district court of Chase county upon a claim of $ 600 against Mrs. Breese for goods purchased by her. Trial by jury, at the July term, 1886; verdict and judgment for the defendant. The plaintiff brings the case here.

Judgment reversed.

Madden Bros., and F. P. Cochran, for plaintiff in error.

Thos. O. Kelley, and Smith & Solomon, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

This was an action in replevin, to recover the possession of a stock of goods and fixtures claimed by the plaintiff by virtue of a chattel mortgage executed by his stepdaughter, one M. E. Breese, to secure an indebtedness due from her of $ 900. The defendant levied upon said goods by virtue of an order of attachment, as the property of Mrs. Breese. The sole question in issue was as to the validity of this mortgage by which plaintiff claimed his right of possession. Plaintiff complains of the instructions of the court to the jury, and the refusal to instruct as requested by him. The court, among other things, instructed the jury as follows:

"7. But, on the other hand, I instruct you that if the mortgage in question was accompanied by an understanding or agreement that the same was wholly or in part for the benefit of said M. E. Breese, by placing her property out of the reach of creditors, then such mortgage was void as against the plaintiff and attaching creditors, notwithstanding the fact that the plaintiff may have been an actual creditor of said M. E. Breese, and in such case plaintiff cannot recover."

"12. You are further instructed, that if you find from the evidence that at the time the mortgage...