R. L. McDonald & Co. v. Richolson

Court of Appeals of Kansas

R. L. McDonald & Co. v. Richolson

45 P. 95, 3 Kan. App. 235, 1896 Kan. App. LEXIS 83

CourtCourt of Appeals of Kansas

DecidedMay 8, 1896

DocketNo. 43

StatusPublished

This text of 45 P. 95 (R. L. McDonald & Co. v. Richolson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

R. L. McDonald & Co. v. Richolson, 45 P. 95, 3 Kan. App. 235, 1896 Kan. App. LEXIS 83 (kanctapp 1896).

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Opinion

The opinion of the court was delivered by

Dennison, J.

Quartermas had an unrecorded mortgage upon all the personal property contained in the store building of Good & Co., and being in the actual possession of it, his right to the possession thereof was superior to that of the sheriff under the execution. While the property was so in the possession of Quartermas, the sheriff levied upon a portion of it; whether with the assent of Quartermas or against his wish does not appear. Quartermas made no effort to repossess himself of the goods taken by the sheriff, but, on the contrary, transferred the note and mortgage and the possession of what goods were then in his possession to McDonald & Oo. It does not appear that Quartermas assigned to McDonald & Oo. his right of action against the sheriff. The agreed statement of facts is that he transferred the mortgage and note and delivered the possession of all the mortgaged property except the articles held by the sheriff. McDonald & Co. [238]*238purchased an unrecorded mortgage, and received possession of a portion of the mortgaged property. The remainder of the property was held by the sheriff under an execution against the mortgagor.

It is clear that Quartermas had a cause of action against the sheriff for the retention of the property held by him, or for the value thereof. Tlie real question in this case is, Did Quartermas, by transferring a note against Good & Co., secured by an unrecorded mortgage, and delivering the possession of property which was in his possession, thereby transfer and assign to McDonald & Co. his cause of action against the sheriff? The agreed statement of facts does not state how the transfer was made, and we cannot assume that an assignment of the cause of action was included in the transfer of the note and mortgage. We must therefore hold that, in the transferring of an .unrecorded mortgage, the assignee takes said mortgage subject to the right'of judgment creditors who have already reduced the mortgaged property to possession, and that the sheriff held the property under the execution for the benefit of the judgment creditor in whose favor it was issued.

The judgment of the district court is affirmed.

All the Judges concurring.

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The opinion of the court was delivered by

Dennison, J.

Quartermas had an unrecorded mortgage upon all the personal property contained in the store building of Good & Co., and being in the actual possession of it, his right to the possession thereof was superior to that of the sheriff under the execution. While the property was so in the possession of Quartermas, the sheriff levied upon a portion of it; whether with the assent of Quartermas or against his wish does not appear. Quartermas made no effort to repossess himself of the goods taken by the sheriff, but, on the contrary, transferred the note and mortgage and the possession of what goods were then in his possession to McDonald & Oo. It does not appear that Quartermas assigned to McDonald & Oo. his right of action against the sheriff. The agreed statement of facts is that he transferred the mortgage and note and delivered the possession of all the mortgaged property except the articles held by the sheriff. McDonald & Co. [238]*238purchased an unrecorded mortgage, and received possession of a portion of the mortgaged property. The remainder of the property was held by the sheriff under an execution against the mortgagor.

It is clear that Quartermas had a cause of action against the sheriff for the retention of the property held by him, or for the value thereof. Tlie real question in this case is, Did Quartermas, by transferring a note against Good & Co., secured by an unrecorded mortgage, and delivering the possession of property which was in his possession, thereby transfer and assign to McDonald & Co. his cause of action against the sheriff? The agreed statement of facts does not state how the transfer was made, and we cannot assume that an assignment of the cause of action was included in the transfer of the note and mortgage. We must therefore hold that, in the transferring of an .unrecorded mortgage, the assignee takes said mortgage subject to the right'of judgment creditors who have already reduced the mortgaged property to possession, and that the sheriff held the property under the execution for the benefit of the judgment creditor in whose favor it was issued.

The judgment of the district court is affirmed.

All the Judges concurring.

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Bluebook (online)

45 P. 95, 3 Kan. App. 235, 1896 Kan. App. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-l-mcdonald-co-v-richolson-kanctapp-1896.