Butts v. Privett

The opinion of the court was delivered by Horton, C. J.: Action of replevin. The plaintiff claims that he is the owner of and entitled to the possession of the property in controversy, under the following instrument of writing: “Know all men by these presents, that, in consideration of the sum of six hundred dollars, the receipt of which I do hereby acknowledge, I do grant, sell, transfer, and deliver unto Samuel J. Butts, his heirs, executors, administrators and assigns, the following goods and chattels, viz.: One span of mules, one gray and one bay, 24 head of stock cattle, one standard mower, one horse-rake, and all farm implements belonging to John Meyer, and on the farm this day purchased by said Samuel J. Butts from said John Meyer, being the S.E.-¡- Sec. 35, T. 32 S., R. 9 W., and N.E.Sec. 2, T.32 S., R. 9 W., and all the hay in stack on said above-described land, and all the corn on said land, corn to be put in crib: to have and to hold, all and singular, the said goods and chattels, forever. And the said grantor hereby covenants with the said grantee that he is the lawful owner of the said goods and chattels; that they are free from all incumbrance; that he has good right to sell the same as aforesaid ; and that he will war [715] rant and defend the same against the lawful claims and demands of all persons whomsoever. “In witness whereof, the said grantor has hereunto set his hand, this 30th day of October, 1883. John M. Meyer. “November 3, 1883. — I have this day sold J. D. Butts the within-described property. Samuel J. Butts.” Plaintiff claims that his brother, Samuel J. Butts, paid Meyer §1,150, and assumed the payment of mortgages on real estate to the amount of of §550, in consideration of the sale and transfer to him of the real and personal property described in the foregoing instrument of writing, and that he purchased the property in controversy of Samuel J. Butts on November 3d, 1883. John Meyer denies that Samuel J. Butts ever bought any of said property of him, but alleges that the bill of sale was intended to operate only as a chattel mortgage to secure four hundred dollars which he loaned from Samuel J. Butts, and which as yet has not been returned or paid; and he further claims that there was a verbal arrangement between himself and Samuel J. Butts whereby he was to retain possession and control of the property described in the written instrument until the money loaned should become due. It is urged, however, that as Meyer admits he received of Samuel J. Butts four hundred dollars, and that as he has never paid back the same, the plaintiff, standing in the shoes of his brother Samuel J. Butts by the sale and transfer to him of his interest in the property described in the written instrument, has the right of possession of the property under §15, ch. 68, Comp. Laws 1879, which provides: “In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.” A bill of sale of personal property, absolute upon its face, if taken as security, is only a chattel mortgage, and it has always been sufficient in a court of equity to show a state of facts outside of the written instrument which would render the same a mortgage. The question in this case to be determined by the jury, was, whether the transaction between Samuel J. Butts [716] and John Meyer was in substance a mortgage, notwithstanding the form the parties had given to it; and this question the jury had the right to determine upon the evidence, independently of the form of the instrument itself. The parties had also the legal right to contract that the possession and control of the personal property should remain with the mortgagor; and this arrangement could be proved by parol. (Moore v. Wade, 8 Kas. 381; McDonald v. Kellogg, 30 id. 170; Jones Ch. Mort. §§23-25; Pierce v. Stevens, 30 Me. 184.) This also disposes of the demurrer which was presented to the answer of Meyer. It is urged that the jury trying the case did not follow the instruction of the court which directed them to find in favor of the plaintiff, if the property described in the bill of sale had been attached in legal proceedings against Meyer, and was about to be or had been taken from him, although the time for the payment of the money had not then expired. We would be inclined to agree with counsel and grant a new trial for the failure of the jury to act in obedience to this instruction, if it were not conceded that after the commencement of this action the legal proceedings referred to in the instruction terminated favorably to Meyer, and therefore there were no legal proceedings pending at the time of the trial under which the property was likely to, or could be taken away from the possession of Meyer. The district court approved the verdict, and virtually withdrew such instruction from the case; therefore the error in this particular matter was wholly immaterial, and upon the finding that the bill of sale was merely executed as security, the judgment of the court was properly rendered. The judgment must therefore be affirmed. All the Justices concurring1.