Rath v. Ponsor

The opinion of the court was delivered by Mason', J.: Wm. J. Rath sued I. O. Ponsor before a justice of the peace for $119 damages for the conversion of a quantity of hay which the plaintiff claimed under a chattel mortgage given him by [371] W. R. McDaniel. In the district court a demurrer to the plaintiff’s evidence was sustained and he appeals. The evidence tended to show these facts: July 12, 1920, McDaniel mortgaged the hay with other property to a bank to secure a note for $193.67, the mortgage being made of record the next day in the office of the register of deeds. September 14, 1920, the plaintiff bought this note and mortgage from the bank, which assigned them to him. On the same day he took from McDaniel a new note and chattel mortgage upon the hay and other property covering both the note he had bought from the bank and a debt of about $1,000 which McDaniel owed him, surrendering to McDaniel the “papers”— probably the note and a copy of the mortgage, as the original appears to have been filed with the register. The defendant told the plaintiff he bought 17 tons of the hay from McDaniel late in the fall of 1920. The defendant asserts that the plaintiff'upon his own showing was not entitled to recover for several reasons, which will be considered in turn. 1. The mortgage given to the plaintiff describes the hay as “100 tons of prairie hay in barn on Buel E. Russell farm in Guilford township, Wilson Co,” without stating whether it was baled or loose. The defendant regards the mortgage as void for insufficiency of description. We think it specific enough to identify the property. 2. The defendant treats the transaction between the plaintiff and the bank with reference to the note and mortgage for $193.67 as a voluntary payment by the plaintiff of McDaniel’s debt to the bank, resulting in wiping it out and giving the plaintiff no right to subrogation. There was evidence however that the plaintiff bought the note and mortgage from the bank and adding McDaniel’s debt of $193.67 to what he already owed him took a new note and mortgage for the whole. The taking of a new note and mortgage although accompanied by a surrender of the old ones would not of itself amount to a payment or discharge of the lien (Howard v. National Bank, 44 Kan. 549, 557, 24 Pac. 983, and cases there cited) and the fact that the later mortgage secured an additional debt and covered additional property does not change the rule in this regard. (Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824; 11 C. J. 684, notes 92 and 93.) 3. The mortgage to 'the bank described the hay in controversy as “eighty acres of hay” on a certain farm. Its validity is challenged on the ground that the uncut grass was a part of the realty. [372] Growing grass may be mortgaged as personalty, a severance being effected by the execution of the mortgage. (11 C. J. 445.) It is contended that there was no evidence that the hay described in the second mortgage was the same as that covered by the first. The bank president, who drew the second mortgage, testified that the property covered by the first mortgage was included in it. Moreover, there being evidence that the defendant admitted obtaining the hay from McDaniel late in the fall the invalidity of the first mortgage would not justify the sustaining of the demurrer. 4. The second mortgage included a tractor and a hay press and contained a recital that they were worth respectively $350 and $450. The plaintiff obtained possession of these and without a sale credited his claim with $500, there being no showing that McDaniel —who appears to have absconded — agreed to that amount. The defendant contends that by reason of this the plaintiff failed to show that anything was still due on the debt. As the articles obtained by the plaintiff were valued in the mortgage at $800 their retention by him can not fairly be regarded as wiping out more than that much of the debt, and as the defendant is only sued for $119 he is not prejudiced by the failure to have them sold. 5. The mortgage to the plaintiff was written upon one of the bank’s printed forms, which styled the bank as the party of the second part and'recited the indebtedness of the first party to it, and thereafter named the bank wherever the expression “party of the second part” would occur in an ordinary blank. In preparing it the banker struck out the name of the bank where it first occurred— in the recital of the indebtedness — and substituted that of the plaintiff, but neglected to make the change elsewhere. The defendant urges that the mortgage should not be enforced without at least being reformed, and that as this proceeding was begun before a justice of the peace reformation cannot be had. The ambiguity in the mortgage, if any, could readily be explained — as it was — by evidence, and effect can be given to it by interpretation without reformation. (Mumper v. Kelley, 43 Kan. 256, 23 Pac. 558.) 6. Objection is made to the consideration of the appeal on the ground that the abstract does not purport to contain all the evidence. That is not necessary. The omissions to which attention is called by the defendant’s brief are not such as to impair the force of the conclusions already announced. The judgment is reversed and the cause is remanded for further prdceedings.