Parsons Savings Bank v. Sargent

The opinion of the court was delivered by Horton, C. J.: This was an action of replevin, to recover the possession of a half-medium Gordon job printing-press. The plaintiff claimed under a chattel mortgage from A. W. Gifford to W. L. Winter, of date 22d April 1875, assigned to it on the 28th of said April, by said Winter. Defendants claimed by purchase from one Carr, who bought at an execution sale, after the mortgage was recorded; but such defendants were ignorant of the existence of the mortgage at the time of their purchase. The chattel mortgage was offered in evidence, but rejected as being void for uncertainty of description. Thereupon the following proceedings were had: “Plaintiff’s counsel asked the witness Augustus Wilson, who was the president of the Parsons Savings Bank: What did you do, if anything, toward taking possession of the property mentioned and described in this mortgage offered in evidence, including the press in controversy?’ “Defendants object, for the reason that the question is incompetent, immaterial, and irrelevant, and assumes that the press mentioned in the mortgage is the one in controversy. Objection sustained — to which ruling plaintiff excepts. “ Plaintiff now offers to prove, in response to such question, that the plaintiff, as assignee of W. L. Winter, the mortgagor, and while A. W. Gifford was in possession of the property described in the mortgage as owner thereof, and before these defendants acquired any interest in said property, with a copy of the mortgage offered in evidence went with A. W. Gifford to where the mortgaged property (including [580] the press in controversy) was, and there took possession of said property with the consent of said Gifford, and retained the possession thereof until the same was wrongfully obtained by other parties, under whom alone these defendants claim, which facts the court refused to allow the plaintiff to prove— to which ruling plaintiff excepts. “Question: ‘State whether or not, prior to the defendants’ obtaining any possession of the press in controversy, you had received possession and control of the said press from A. W. Gifford? and if yea, state the facts in relation thereto.’ Defendants object, on the ground of incompetency, irrelevancy, and immateriality. Objection sustainedto which ruling plaintiff excepts. “Plaintiff now offers to prove, in response to such question, that A. W. Gifford, as owner of said press in controversy, delivered possession of the same to this plaintiff before the constable’s sale mentioned in the testimony, and before defendants’ purchase of the press referred to in the testimony, and that such possession was transferred for a valuable consideration, and that the said press was in the possession of this plaintiff at the time of the supposed constable’s sale— which facts the court refused to allow plaintiff to prove — to which ruling plaintiff excepts.” As the chattel mortgage neither sufficiently described the personal property, nor stated where it was situated, nor gave the place, county, or state where either the mortgagor or mortgagee resided, it was insufficient and defective, within Golden v. Cockril, 1 Kas. 259. The description of property in a chattel mortgage, to be good, should contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles. When however the plaintiff offered to prove that, while the property was in the possession of Gifford, and before the defendants acquired any interest in it, the plaintiff, with a copy of the mortgage, went to where the mortgaged property was, and then took possession of the same with the consent of the mortgagor, and re [581] tained possession of it until it was wrongfully obtained by other parties, the court below erred in rejecting the testimony. If this was done as claimed, it would cure any defect in the mortgage on account of any imperfect description of the property ; for it would be an appropriation and identification of the specific property to the mortgagee. Of course, the delivery, to be valid, must have been an actual transfer of the possession and control of the property, so that if destroyed the loss would have been that of the mortgagee, (or in this case, the assignee of the mortgagee, who stands in the shoes of the mortgagee.) Any constructive delivery or taking possession would have been of no avail. The judgment of the district court must be reversed, and the case remanded for a new trial. All the Justices concurring.