Haire v. Miller , 49 Kan. 270 ( 1892 )

Opinion by

Stjrang, C.:

Action for the conversion of a stock of goods. George Haire, owner of a certain stock of goods, sold the same January 31, 1887, to Elizabeth J. Margason for $1,000, and took in payment therefor four promissory notes of $250 each, due in three, six, nine and twelve months thereafter, and, to secure the payment thereof, took a mortgage back on the goods sold, which was filed for record February 17, 1887. By the terms of the mortgage, it was stipulated that, until default, or until the mortgagee deemed himself insecure, the mortgagor was to continue in possession of said goods. February 5, 1887, while the mortgagor was still in possession of the goods, an execution in favor of Victor B. Buck & Co. against one William Margason was levied thereon, and they were advertised, and sold February 26 and 28, 1887. February 23, 1889, Haire, the plaintiff, commenced his action as mortgagee and assignee- of the mortgagor, to recover the value of the goods. Three defenses were interposed — general denial, statute of limitations, and fraud. A reply was filed, and trial by jury had, which returned a general verdict for the plaintiff in the sum of $1,450, and also made special findings, as follows :

“Q. 1. Did not the plaintiff, George Haire, demand of W. H. Beagle, deputy sheriff, the possession of the stock of goods under his mortgage on February 26, 1887? A. Yes.

“Q,. 2. Did said W. H. Beagle, deputy sheriff, refuse to give up the possession when so demanded by George Haire, mortgagee? A. Yes.”

“Q. 1. At what time did the sheriff, by his deputy, seize the goods in controversy and take them from the possession of the plaintiff, Mrs. E. Margason? A. February 5, 1887.

“ Q,. 2. At the time the sheriff seized the goods, were the goods the property of Mrs. E. Margason? A. Yes.

“Q,. 3. Was such seizure at the time it was made wrongful as to the plaintiff, George Haire? A. No.

“Q. 4. When was the mortgage under which Haire claimed recorded or filed for record? A. February 17, 1887.

“ Q. 5. What part of the goods in controversy was from the stock bought by the plaintiff at the mortgage sale of McKinney, Handley & Walker? A.. Don’t know.

“ Q,. 6. What part of the goods in controversy are of the goods bought by Wm. Margason in the name of E. J. Margason, after Haire bought the store at the chattel-mortgage sale? A. Don’t know.

“Q. 7. What was the market value of the goods seized by the defendant, Sheriff Miller or his deputy, at the time they were seized? A. Don’t know.

“Q,. 8. What was the value of the goods bought by Haire at the mortgage sale left in the store on the 31st day of January, 1887? A. Don’t know.

“Q,. 9. Are the plaintiff, George Haire, and Mrs. E. J. Margason, any relation? If so, what? A. George Haire son-in-law to Mrs. E. J. Margason.

“Q. 10. Also, what relation is E. J. Margason to William Margason? A. His wife.”

The defendants moved for judgment on the special findings in their favor, on the ground that the findings showed that the action was barred. This motion was sustained. The plaintiff moved for judgment on the verdict, which motion was overruled. He then moved to set aside the findings and verdict, which was denied, and also for new trial, which was overruled.

The only question in the case is, was the action barred by the statute? If the statute commenced to run against the claim of Haire from the date of the levy on the goods in the possession of the mortgagor, his right of action was barred with the expiration of two years from said 5th of February, 1887, and before his suit was begun, and the judgment of the court below should be affirmed. But if the statute did not commence to run against Haire until he demanded the goods from the officer having the levy thereon, on the 26th day of February, 1887, the statute had not fully run when his suit was brought, and the action was not barred, and the judgment should be reversed. By the terms of the mortgage from Mrs. Margason to Haire, she was to remain in possession and control of the goods until default in payment was made, or Haire deemed himself insecure. At the time of the levy upon the goods by the sheriff, no default had occurred, and Haire had not declared himself insecure. The mere levying of the execution upon the. goods constituted no trespass upon the rights of Haire. He was not in possession of the goods when the levy was made, nor had his right to possession accrued, because no default had been suffered, and he had not declared himself insecure. The levy invaded none of his rights. It affected only the rights of the mortgagor, Mrs. Margason. On the 26th of February, when the goods were about to be sold, and before they were sold, Haire elected to deem himself insecure, and demanded the possession of the goods from the party in possession thereof — the officer making the levy thereon. His right to the possession of the goods then accrued, and from thenceforward the action of the sheriff was such an invasion of his rights as to set the statute to running against him. In the case of Ament v. Greer, 37 Kas. 648, this court says: ¶

“Where the mortgagor of chattels has the right to the possession of the mortgaged property until default, and before the default an execution against him ana in favor of a third person is levied by an officer on the property, the levy attaches to and covers only the interest of the mortgagor, and the mortgagee, after default, has the right to take possession of the property as against the officer.”

(See, also, Rankine v. Greer, 38 Kas. 343; Easter v. Traylor, 41 id. 493.)

It is after default that the mortgagee has the right to take possession. And certainly the statute cannot commence to run against him until he has the right to the possession of the goods. The court in that case say:

“And in such a case, when the mortgagee after default demands the property from the officer, and the officer refuses to surrender the same, the mortgagee may then maintain an action of replevin against the officer for the recovery of the property.”

After default and demand for the goods, the mortgagee may maintain his action. Would he not have the full period of the statute after default in such a case in which to bring his action? There can be no doubt about it. And if the full statutory period after default in such a case, why not in this? Is there any difference in principle in this respect in an action of replevin and an action for the value of the goods? We do not understand that there is. Haire demanded the goods of the officer February 26, 1887, and the officer refused to surrender them. We think the statute commenced to. run at that time. The action was begun February 23, 1889, and was not therefore barred.

It is recommended that the judgment of the district court be reversed, and that judgment be entered in this court on the general verdict and the findings for the plaintiff for $1,450, and interest from June 24, 1889.

By the Court: It is so ordered.

All the Justices concurring.