Simpson v. Sheley

60 P. 1098, 9 Kan. App. 512

Opinion

The opinion of the court was delivered by

Mahan, P. J. :

The question presented in this case by the record and by the briefs and arguments of counsel is whether a lien created upon personal property by chattel mortgage can be enforced where it appears that the note evidencing the debt which the mortgage was given to secure has been materially altered in its terms by the payee, innocently.

It is contended that this was decided by the court in this case in its opinion filed December 4, 1896, and reported in Sheley v. Simpson, 5 Kan. App. 465, 46 Pac. 994. We do not construe the opinion as determining this question at all. It would appear from the opinion itself that the plaintiff relied upon the note as evidence of the debt.

Without going into a discussion of the principles of law involved in the case, we content ourselves with saying that justice and the authorities unite in holding that in such a case the mortgagee may enforce his mortgage notwithstanding the alteration of the note, if the debt still exists and can be proved independently of the altered note. See Clough v. Seay, 49 Iowa, 111; Vogle v. Ripper, 34 Ill. 100; Sloan v. Rice, 41 Iowa, 465; 2 A. & E. Encycl. of L. (2d ed.) 202. It necessarily follows that the trial'court erred, and its judgment must be reversed, with directions to award the plaintiff a new trial.