Muse v. Lehman , 30 Kan. 514 ( 1883 )

The opinion of the court was delivered by

Valentine, J.:

This action was commenced before a justice of the peace by S. Lehman, against R. W. P. Muse, R. M. Spivey, and John A. Randall, partners as Muse, Spivey & Co., and after judgment in favor of the plaintiff and against the defendants, the defendants appealed the case to the district court, where another trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendants for $59.55. To reverse this judgment, the defendants below, who are plaintiffs in error, bring the case to this court. The facts of the- case appear to be substantially as follows: On June 4, 1877, William Crow executed to S. Lehman & Co. a chattel mortgage on certain wheat then growing in the field, to secure a debt to become due August 15, 1877, from Crow to Lehman & Co. The wheat was described in the chattel mortgage as follows: “35 acres of winter wheat now standing and growing on the southeast quarter of section No. 29, township No. 24, of range 1, east, in Harvey county, state of Kansas.” There was also a stipulation in the mortgage that the mortgagor was to remain in the possession of the wheat until default. This mortgage was filed in the office of the register of deeds of Harvey county on June 8, 1877, and was afterward kept alive by renewal affidavits. Afterward, Crow, with the consent of S. Lehman & Co., harvested the wheat and stacked it upon the same premises, threshed it, weighed it, and found that there were just 84 bushels, and then put it into a bin on the same premises, in which bin there had previously been stored 42 bushels of other wheat, belonging to Crow, but mortgaged to a man by the name of Luhn. Afterward, and about September 1, 1877, Crow, with the consent of the mortgagees, sold said wheat to Muse, Spivey & Co. Afterward T. P. Cratty commenced an action before a justice of the peace against Crow and one H. H. Andrews for the sum of $75, and served a notice of garnishment upon Muse, Spivey & Co., as the debtors of Crow. About the same time, S. Lehman & Co. demanded of Muse, Spivey & Co. the amount due from them for the wheat mortgaged to S. Lehman & Co. and sold by Crow to them, Muse, Spivey & Co., and informed Muse, Spivey & Co. that they, S. Lehman & Co., claimed this amount, to wit, $56, by virtue of their said chattel mortgage. Afterward Muse, Spivey & Co. appeared before the justice of the peace to answer to the said notice of garnishment. S. Lehman & Co. also appeared, and claimed that the debt which Muse, Spivey & Co. owed for the wheat mortgaged to S. Lehman belonged to them, S. Lehman & Co., and not to Crow or to Crow and Andrews. Muse, Spivey & Co., however, answered that they owed the debt to Crow. The justice found in favor of S. Lehman & Co., and made his order accordingly. The plaintiff Cratty then appealed the case to the district court, and in the district court S. Lehman & Co. again attempted to show that the debt due from Muse* Spivey & Co. for said wheat belonged to them, and not to Crow or to either Crow or Andrews; but the district court refused to hear them, refused to permit them to make any plea, or to introduce any evidence upon the subject; and the court then made an order solely upon the answer of Muse, Spivey & Co., that they should pay the amount of their indebtedness for said wheat into court for the use of the plaintiff Cratty. Muse, Spivey & Co., as well as the plaintiff Cratty, all the time claimed that the debt for the wheat belonged to Crow, while Crow and S. Lehman & Co. all the time claimed that it belonged to Lehman & Co. Cratty had purchased his claim against Crow and Andrews from Muse, Spivey & Co. We might here say that previous to this time the firm of S. Lehman & Co. had been dissolved, and that the claim of S. Lehman & Co. then really belonged to S. Lehman; and probably, in several instances where we have used the firm-name of “S. Lehman & Co.” we should merely have used the single name of S. Lehman.” Neither S. Lehman nor S. Lehman & Co. were parties to the suit brought by Cratty against Crow aud Andrews; and they had no connection with the suit in any manner except as above stated.

The plaintiffs in error, defendants below, claim that the judgment of the court below should be reversed, for various reasons.

I. They claim that the mortgage is void because of an insufficient description. Now, we do not think it iá void for such reason. (Brown v. Holmes, 13 Kas. 482; Shaffer v. Pickrell, 22 id. 619; Mills v. Kansas Lumber Co., 26 id. 574, 578.)

II. The plaintiffs in error also claim that the mortgage became void as to the mortgaged property by reason of the changes made in such property — that is, they claim that the mortgage became void with reference to the wheat because the mortgagor was allowed to retain the possession of the wheat, to harvest it, to thresh it, to put it into a bin along with other wheat, and then to sell it. This we think'did not render the mortgage void. (Duke v. Strickland, 43 Ind. 494; Smith v. Jenks, 1 Denio, 580; White v. Brown, 12 U. C. Q. B. 477.) The mortgage was dated and executed June 4, 1877; the debt secured by it was to become due August 15, 1877; the mortgagor was to retain possession of the wheat until default; and the mortgage was duly filed for record, in the office of the register of deeds, on June 8, 1877. The mortgage itself showed specifically where the wheat was at the date of its execution. Everyone knows that the wheat should be harvested before August 15 of any year, and this wheat was in fact harvested before August 15, 1877, and it was stacked on the premises where grown, and it remained in the possession of the mortgagor, according to the stipulations of the mortgage. It was afterward threshed and put into a bin, and still remained in the possession of the mortgagor. There was no intention on the part of any of the parties to commit a fraud by putting this wheat into a bin along with the other wheat, or in afterward selling it, but all was done in the best of faith; besides, all the wheat was of the same quality, and there was just twice as much of this wheat as of the other wheat; and the other wheat was put into the bin first, so that there could not have been much difficulty in separating the two. As to separating the two, see, in addition to the foregoing cases, the case of Piazzek v. White, 23 Kas. 621; and Ryder v. Hathaway, 38 Mass. 298. The wheat was sold by the mortgagor at the instance of the mortgagees soon after the mortgage debt became due, and the proceeds of the sale of the wheat were to be applied in payment of the mortgage debt. Both the mortgagor and the mortgagees resided in Harvey county, and could easily have been found. From the foregoing facts it will be perceived that the property could easily have been found and its status ascertained at any time before the sale, by proper inquiries. Any person desiring to know any of these facts could have gone to the premises where the wheat was raised, and threshed, and stored, and made inquiries of the mortgagor, or others living there; or he could have gone to the mortgagees, or their agents, and made'inquiries concerning the matter. All persons were bound to take notice of S. Lehman & Co.’s chattel mortgage. The authority to sell the wheat, and the sale, were in good faith, and could not have destroyed the mortgagees’ right to the proceeds of the sale. (Frankhouser v. Ellett, 22 Kas. 127; Brackett v. Harvey, decided by 'the New York Court of Appeals in 1883, 17 Cent. Law Jour. 112.) This last case cited is a strong case in favor of the power to sell, and to sell on credit.

III. We do not think the garnishment proceedings had in this case can have the effect to bar the plaintiff’s present .action. Neither the plaintiff nor his firm (S. Lehman & Co.) was a party to the case in which the garnishment proceedings were had. It is true the plaintiff appeared before the justice of the peace in that case, and claimed that the debt for the wheat was due to him, and not to Crow; and the justice of the peace decided in his favor, and taxed the costs of the .garnishment proceedings to Cratty, the plaintiff in that case. But in the district court there was no litigation concerning the matter. The district court utterly refused to hear or receive anything from Lehman, the plaintiff in this case; and Muse, Spivey & Co. then appeared and admitted that they •owed the debt to Crow, and did not state any of the circumstances upon which the debt was founded. They did not inform the court with respect to any of the facts upon which Lehman claimed that the debt was coming to him. The •court then ordered that Muse, Spivey & Co. pay the amount of the debt into court, for the use of the plaintiff in that case, Cratty; and afterward they did pay the same into court, as ordered by the court. Now Muse, Spivey & Co. are not attaching creditors, or innocent purchasers of. mortgaged .goods for a valuable consideration, for at the time they allowed or procured the order of the district court to be made against them, requiring them to pay the amount of the debt •into court for the benefit of Cratty, they had full and complete knowledge of Lehman’s claim. Besides, they were ’bound to take notice of S. Lehman & Co.’s mortgage, and bound to know when they purchased the wheat that they were purchasing the property mortgaged to S. Lehman & Co. Orders made in garnishment proceedings can seldom be con-sidered as final adjudications. (Board of Education v. Scoville, 13 Kas. 18; Fitch v. Fire Ins. Co., 23 id. 366.) And the order made by the district court in the present proceeding» in the case of Cratty v. Crow and Andrews can certainly not be considered as a final adjudication as against the present plaintiff, Lehman. (Borden v. Noble, 26 Kas. 599.) In justices’ courts interpleas in garnishment proceedings are not allowed; but if they were, the order of the justice in the present case was in favor of Lehman; and in the district court Lehman was not allowed to file any interplea or to give any evidence with respect to his claim, or even to make any appearance with respect thereto; and of course the order in the district court, requiring Muse, Spivey & Co. to pay the debt which they owed for the wheat into court, for the use of Cratty, cannot be considered as an adjudication against the-present plaintiff, Lehman. (See Borden v. Noble, ante.) The order of the district court, and the payment of the money into court by Muse, Spivey & Co., would certainly relieve them from ever afterward paying the same amount to Crow ; but it would not relieve them from paying the debt to Lehman, provided they owed the same to him, and not to Crow.

The judgment of the court below will be affirmed.

All the Justices concurring.