Standard Implement Co. v. Parlin & Orendorff Co.

The opinion of the court was delivered by Hoetoh, C. J.: i Attachment-i'lmien'of ~ pi00f' It is contended that the trial court erred in ruling that the burden of proof was upon the Standard Implement Company, upon the hearing of its motion to discharge the property from the levy of attachment. It was not claimed that the attachment should have been discharged because the affidavit was untrue, or that the proceedings were irregular. The Standard Implement Company claimed part of the property attached as the absolute owner thereof, and also claimed the balance of the property under two chattel mortgages. Upon such a motion, the burden rested with the Standard Implement Company, the claimant of the property, and it was properly required by the court to first produce its evidence. After the the parties had had a trial, with their consent, before the court and a jury, and a verdict had been rendered in favor of the Parlin & Orendorff Company, the Standard Implement Company requested the court to pass upon the motion, independent of the verdict. This was done by the court. The motion to discharge the property was overruled. Therefore, as the case is now presented, we need not examine the questions raised concerning the instructions given to the jury. [576] 3. Chattel mortgage, when [574] The principal question is, whether the Standard Implement Company was in actual possession of the agricultural implements, buggies, wagons, etc., in controversy at the time the order of attachment was levied. It appears from the evidence that, prior to April 13, 1889, L. M. Spencer was carrying on business at Kiowa, Barber county. He was then [575] indebted to the Parlin & Orendorff Company for agricultural implements, machinery, merchandise, etc., over $3,000, and to the Standard Implement Company for other agricultural implements, machinery, etc., $4,352.37. On the 12th of April, 1889, L. M. Spencer executed to A. N. Spencer, his brother, a chattel mortgage for $2,000 upon his stock of goods, but dated the mortgage back to April 10, 1889. It seems to be conceded that the chattel mortgage of $2,000 to A. N. Spencer was without consideration, and given to defraud, delay and hinder the creditors of L. M. Spencer. On the 13th of April, 1889, L. M. Spencer executed a mortgage of $3,000 upon his stock of goods to the Standard Implement Company, but dated it April 12, and then sent the same from Kiowa by mail to J. P. Hall, the register of deeds of Barber county, at Medicine Lodge, requesting him to “ keep inclosed in your possession.” There were no instructions to file or record the same. Hall received this chattel mortgage on the 13th of April, 1889, and on Sunday, the 14th of April, 1889, J. N. Eastwood, the agent of the Standard Implement Company, called on him and received the mortgage executed by Spencer. He then redelivered it to Hall, as register of deeds, and requested him to file it in his office, and paid him his fees for such service. On the following morning at 7 o’clock, Monday, April 15, Hall filed the mortgage in his office; but before that time, and about 4:3(3 o’clock A. M. of April 15, the order of attachment of the Parlin & Orendorff Company was levied at Kiowa upon the stock of L. M. Spencer. On April 15,1889, L. M. Spencer executed another chattel mortgage to the Standard Implement Company for $4,300, but this was not filed for record until the 16th of April, 1889, at 7 o’clock a. M., long after the levy of the attachment. It is said the second mortgage was given because the first mortgage did not cover the full indebtedness of Spencer to the Standard Implement Company. If the chattel mortgage of $3,000, of April 12, 1889, was not deposited for record prior to the levy of the attachment on the morning of April 15, and if, [576] at the time of such levy, the Standard Imple- , rv . • , i . ~ ment Company was not m actual possession oí the stock of goods levied upon, the chattel mortgage was absolutely void as against the Parlin & Orendorff Company, attaching creditors. (Gen. Stat. of 1889, ¶3903; Ramsey v. Glenn, 33 Kas. 271; Jewell v. Simpson, 38 id. 362.) 2' g^when^" lights °f ereaIt is urged that the mortgage of $3,000 was accepted in good faith, and that as Hall, the register of deeds, was requested by Eastwood, the agent of the Standard Implement Company, on Sunday, April 14, 1889, to file the same, the filing thereof must date from that time, and therefore that the chattel mortgage was deposited in the office of the register of deeds prior to the levy on the morning of April 15. The delivery by Eastwood to Hall of the chattel mortgage of $3,000, on Sunday, April 14, cannot be considered as a “deposit in the office of the register of deeds” on that day. The public offices of a county are not open on Sunday, nor are they required to be open for business of any kind on that day. (Gen. Stat. of 1889, ¶ 1877; Crimes Act, § 255; Morris v. Shew, 29 Kas. 661; City of Parsons v. Lindsay, 41 id. 336.) It is not claimed that the register was in his office on April 14, or that the chattel mortgage was left at his office, and no creditor or subsequent purchaser was bound to take notice of such mortgage until taken to the office, or filed by the register of deeds in his office, at 7 o clock on the morning of April 15. This was after the levy of the attachment. If the chattel mortgage had been deposited during the usual business hours of any week day by Eastwood with the register of deeds, in his office, and the register had failed or neglected to file it until the next morning, or some subsequent day, the rights of the mortgagee would not be affected or prejudiced thereby, in a contest with another creditor. But, as stated, the chattel mortgage was not deposited for filing until the morning of April 15. Before that time, Hall was acting merely as the agent of the Standard Implement Company. [577] The testimony as to the party or parties in the actual possession of the stock of goods of L. M. Spencer at the time of the levy is greatly conflicting. There was testimony introduced tending to show that A. N. Spencer, on the 13th of April, 1889, under his fraudulent mortgage, took actual possession of the store building and adjoining premises, with all the goods, wares and merchandise in dispute; that he continued in the possession of the building and the premises, and the goods and merchandise, until the levy. The affidavit of Mary J. Spencer, offered by the Standard Implement Company, stated among other things that just before the levy “ George W. Stevens, the sheriff, came to the residence of L. M. Spencer and said he wanted a key to the store building of Spencer; whereupon A. N. Spencer, the brother of L. M. Spencer, said, in reply, ‘that he had the key to the store and was in possession of the stock of goods of L. M. Spencer, under and by virtue of a chattel mortgage executed by L. M. Spencer to him, and that he would be up to the store within half an hour.’” There was testimony introduced to show that, on the 13th and 14th of April, L. M. Spencer was carrying on the business in the store as usual, and than A. N. Spencer was not in charge. There was also testimony introduced tending to show that A. N. Spencer and the Standard Implement Company had joint possession of the stock at the time of the levy; and there was further testimony introduced tending to show that, between 2 and 3 A. M., of April 15? Eastwood, the agent of the Standard Implement Company, went into the store building of L. M. Spencer, accepted possession of the goods from A. N. Spencer, subject to his possession, and left the store before 3 o’clock, locking the door and putting the key of one of the doors of the building in his pocket; that he then went to his hotel and retired. George W. Stevens, the sheriff, testified: “Ques. Now, referring to that order [attachment], about what time was it that you went to Kiowa that night? Ans. Well, it was in the morning of the 15th I think; I know it was before daylight; I can’t tell the exact hour, but I think [578] between three and four o’clock; I would not be certain about that, but before daylight. “Q,. Did you go to L. M. Spencer’s residence that night? A. .Yes, sir. “Q. What did you do there? A. Why, I told him what I had come for; that I had come with an attachment to take possession of his stock of goods there. “Q. Where were you when you made that statement? A. I was in his house. “Q,. Who was. present? A. His brother and his wife were there. “Q,. What did L. M. Spencer say to that? A. Well, I can’t say exactly what he did say; he pretended to be very sick, and did n’t want to talk about it, and did n’t talk about it; I said ‘pretended,’ I guess he was sick. “Q,. You demanded the key? A. Yes, I asked him for the key; his brother [A. N. Spencer] was there; his brother done more talking than he did; he said he held the goods under a chattel mortgage — held the stock. “Q. Claimed to be in possession of it? A. Yes, sir. “Q,. .Did he say anything about anybody else being in possession with him of the stock? A. No, I think not; don’t think he did. , “Q,. You demanded the key of L. M. Spencer? A. Yes, sir. “ Q,. What did he say ? A. Said he did n’t have it, and his brother said he would bring it to me, up to the store building, in 15 minutes. “Q. Where did you go from there? A. To the store building.' “Q,. You waited 10 or 15 minutes? A. Yes; longer than that, I think. “Q,. Did A. N. Spencer come? A. No; never came. “Q. What did you do then? A. I went into the building; I put my notices in there that I had attached the property. “Q. Now, at the time you took possession of that stock under this order of attachment, was there anyone else there except Mr. Hopkins, Mr. Mercer, and yourself? A. No, sir; no one there except the parties that went with me. “Q,. Was there any notices or signs tending to show that the stock had been taken possession of by some one else? A. Not to my knowledge; I saw nothing, sir. [579] “What did you do after taking possession of the stock? A. I went from there to the hotel, but left the building in charge of Mr. Hopkins; he agreed to take charge of it until I came back in the morning. “Q,. What time did you go back in the morning? A. Seven o’clock, perhaps; as soon as I got breakfast, I went back to the store building. “ Q,. Who was there at that time? A. Mr. Hopkins was there; I do n’t remember whether Mercer was there when I got there; if not, he was there soon after. “Q,. Did anyone else come there? A- I think several others came there during the morning; don’t remember all who were there.” 4' Snseflnding." On account of the conflicting evidence concerning the actual possession of the stock of goods and merchandise at the time of the levy, we cannot, as against the general finding of the trial judge, reverse the judgment. There was sufficient evidence introduced to show the Standard Implement Company did not have the actual possession at the levy. The burden of proving such possession was upon that company, the claimant of the property. (Swiggett v. Dodson, 38 Kas. 702; McCarthy v. Grace, 23 Minn. 182; Wilson v. Hill, 30 Pac. Rep. 1076.) The evidence being conflicting, we cannot interfere. We will not construe the contracts of sale between the Standard Implement Company and L. M. Spencer, because it is admitted “that the title clause in the contracts only operated as a lien upon the goods.” We do not decide that this is a proper interpretation of such contracts. The act of the legislature of May 25, 1889, requiring written contracts of conditional sales to be recorded, did not affect the rights of the parties as the same accrued prior to the law going into force. (Laws 1889, ch. 255.) The order and judgment of the trial court will be affirmed. All the Justices concurring.