Neerman v. Caldwell

50 Kan. 61

• Court: Supreme Court of Kansas
• Decided: July 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

On the 9th day of February, 1888, Caldwell & Peterson filed a petition for the purpose of settling the priorites of two chattel mortgages upon certain calves, one executed by W. K. Miller to Caldwell & Peterson, to secure the payment of $1,650, dated November 16, 1887, but not filed for record until after the execution of another mortgage by Miller to Neerman, dated December 6, 1887, to secure the payment of an old debt, amounting to $337.50, but filed for record on the day of its execution. The trial court held the Caldwell & Peterson mortgage a first lien on the calves, because Neerman had notice thereof prior to obtaining or accepting the chattel mortgage of December 6, 1887. Neerman’s contention is that there was no evidence to sustain the findings of the trial court.

We have carefully examined all the testimony preserved in the record, in connection with the comments of counsel thereon. In our opinion, we cannot reverse the judgment upon the ground that the findings and judgment were without any support. All the equities of the case favor Caldwell & Peterson. Miller agreed, when he borrowed the money from Caldwell & Peterson, to invest it in the purchase of the calves mortgaged to them. Neerman’s subsequent mortgage was taken to secure $337.50 on account of an old note that Miller had traded for with one Bean. The mortgage of Caldwell & Peterson, of the 16th of November, 1887, was valid against Neerman, who held the subsequent mortgage which was recorded first, if he had notice of the prior unrecorded mortgage at any time before obtaining or accepting a lien on the mortgaged property. Actual notice is as effectual as constructive notice by record as against a subsequent mortgagee. (Gen. Stat. of 1889, ¶3903; Corbin v. Kincaid, 33 Kas. 649; Jones, Ch. Mortg., §317.)

A new trial will not be granted by this court where the evidence is conflicting, if there is enough in the record, taken by itself, to sustain the findings and judgment. It is also the well-settled rule of practice in this court, that in civil cases the findings of a trial court will not be disturbed if there is sufficient evidence to support them. (Railroad Co. v. Kunkel, 17 Kas. 145.)

The judgment of the district court will be affirmed.

All the Justices concurring.