Williams v. Mitchell

• Decision Date: 20 November 1899
• Docket Number: 380
• Citation: 58 P. 1025,9 Kan.App. 627
• Parties: J. C. WILLIAMS v. D. A. MITCHELL
• Court: Kansas Court of Appeals

58 P. 1025

9 Kan.App. 627

J. C. WILLIAMS v. D. A. MITCHELL

No. 380

Court of Appeals of Kansas

November 20, 1899

Decided November, 1899.

Error from Sedgwick district court; C. REED, judge.

Judgment of district court affirmed.

SYLLABUS

1. CHATTEL MORTGAGES -- Filing for Record-- Execution Creditor. Where a mortgagee withholds from the record a chattel mortgage for more than a month, then assigns and delivers it to another, who immediately files the same for record and takes actual possession of the goods mortgaged, it is not void for failure to record, as required by section 1 of chapter 120, General Statutes of 1897 (Gen. Stat. 1899 § 4060), as against an execution creditor who asserts his rights by levy after the mortgage is filed and possession given.

2. -- Possession of Property -- Good Faith. A chattel mortgage will not be declared void upon its face for the reason that the mortgagor retains possession of the stock and is permitted to deduct his living expenses from the proceeds of the sales, "but will be upheld or condemned, according as the agreement is entered into and carried out in good faith or not."

Adams & Adams, for plaintiff in error.

Holmes & Haymaker, for defendant in error.

OPINION

SCHOONOVER, J.:

R. Allen Hall was indebted to the State National Bank in the sum of $ 5000; D. A. Mitchell, defendant in error, was his indorser, and to secure him upon his liability to the bank Hall executed and delivered to Mitchell, on August 26, 1890, a chattel mortgage on a stock of jewelry. Mitchell held the mortgage until the 17th day of October, 1890, when he delivered it to the State National Bank. On the same day the bank filed the mortgage for record and took possession of the stock and placed it in charge of D. A. Mitchell, as agent.

While the stock of goods was in the possession of Mitchell, and before the stock was sold under the provisions of the mortgage, the plaintiff in error, as constable, levied upon eight watches contained in the stock and took actual possession of them. On the 5th day of November, the stock was sold at public sale, as provided in the mortgage, for $ 4000, to the State National Bank, and on the same day, sold by it to defendant in error.

The plaintiff below, defendant in error, commenced this action in the district court of Sedgwick county to recover the value of the watches and damages. In his petition he alleges:

"That immediately after the said sale the said bank executed to the plaintiff herein a bill of sale of the property in writing, and also assigned in writing all its title or rights arising under the said mortgage, as well as all right of action against the said defendant for the taking of the said goods as aforesaid."

This allegation was not denied by verified answer. The case was tried to a jury, special findings and general verdict returned, and judgment rendered upon the verdict for plaintiff below. The defendant below brings the case here for review.

The only...