Wilson v. Nichols, Shepard & Co.

53 P. 185, 7 Kan. App. 641, 1898 Kan. App. LEXIS 389

• Court: Court of Appeals of Kansas
• Decided: May 14, 1898
• Docket: No. 323
• Status: Published

Opinion

The opinion of the court was delivered by

Sci-ioonover, J.:

The defendants in error commenced this action in replevin in the district court of Cowley county to recover the possession of eighty acres of growing wheat, claiming ownership and possession by virtue of a chattel mortgage. The plaintiffs in error,'defendants in the court below, filed a general denial, and upon the trial claimed title to the wheat in controversy by virtue of a prior chattel mortgage, the validity of which is the principal question in this case.

At the trial plaintiff objected to the introduction of the mortgage “for the reason that the description of the property in the mortgage is so indefinite and uncertain as to the property therein described that the mortgage is wholly void.” The following is the description :

All the wheat growing on the southwest quarter of section 8, township 34, range 8 ; and north half of northwest quarter of section 17, township 34,.range 8 ; also the east half of the southeast quarter of section 7 of township 34, range 8.”

The mortgage is indorsed as follows : ‘ ‘ Filed and entered in vol. T, page 236, November 22, 7 a. m., 1893. R. S. Strother, Reg.”

There is nothing in the mortgage to indicate where the property is located, in what state or county, or where the mortgagor or mortgagee reside, whether the property is in range 8 east or 8 west, or where the mortgagé is recorded, or of what county R. S. Strother is the register of deeds. The description is not sufficient ; a third party could not by its aid, together with such inquiries as the mortgage itself suggests, identify the property. (Golden v. Cockril, 1 Kan. 259; Savings Bank v. Sargent, 20 id. 576; Tootle, Hanna & Co. v. Lyster, 26 id. 589.)

The plaintiffs in error offered to prove that the defendants in error Nichols, Shepard & Co. had actual notice of the first mortgage before the second mortgage Was given. The court refused to 'permit the defendants to complete the introduction of this testimony, discharged the jury, and rendered judgment for plaintiffs below. This was error.

It is true that the description is insufficient, and it is also true that the plaintiffs in error, Willson arid Turner, did not have possession of the wheat under their mortgagé at the time' the second mortgage was given. Proof of actual notice on the part of Nichols, Shepard & Oo. of the first mortgage on this wheat prior to and at the time the second mortgage was executed was material, and under proper instructions: should have been submitted to the jury.

The judgment of the district court is reversed.