Judgment was rendered in favor of the Kansas Manufacturing Company against J. W. Bailey for all costs. He excepted, and brings the case here.

HORTON, C. J. The first conclusion of the trial court, if the chattel mortgages therein referred to were executed in good faith and for a valid consideration, cannot be upheld. The several instruments executed by A. Macdonald were not intended to constitute a general assignment for the benefit of creditors, and the findings of fact do not support such a conclusion. It is well settled that an insolvent, as long as he retains a jus disponendi of his property, may appropriate it to the payment of his debts, and may prefer creditors. He may use all his property this way, or he may so use a part and make a general assignment of the remainder. Lampson v. Arnold, 19 Iowa, 479; Dodd v. Hills, 21 Kan. 707; Randall v. Shaw, 28 Kan. 419.

It was held in Dodd v. Hills, supra: "The fact that, pending a contemplated assignment for the benefit of creditors, a mortgage was executed in good faith by the debtor to one of his creditors to secure a pre-existing debt, which mortgage had long previous been promised by the debtor to such creditor, does not show that the deed of assignment subsequently executed was executed with the intention of hindering, delaying, and defrauding creditors; nor does it render such deed of assignment void."

At the time of the execution of the mortgages to Maria Macdonald and to the Gibbs & Sterrett Manufacturing Company, A. Macdonald had the possession of the goods in controversy and the right to dispose of the same. There is nothing in the assignment act that prohibits the execution of chattel mortgages, or that prohibits the transfer, by pledge or otherwise, of any kind of property to a creditor to secure the payment of a debt due to such creditor; nor is the execution of chattel mortgages, or the transfer of property to secure a creditor, against the spirit or intention of the statute regulating voluntary assignments. Tootle v. Coldwell, 30 Kan. 125; S. C. 1 PAC. REP. 329.

The case of Van Patten v. Burr, 52 Iowa, 518, S. C. 3 N. W. Rep. 524, to which we are referred, is not fully applicable. In that case, the chattel mortgages were executed on the same day with the deed of general assignment, and the petition alleged "that the several instruments were intended to constitute a general assignment for the benefit of creditors." The decision was rendered upon the demurrer to the petition, and of course all the averments therein were admitted by the demurrer to be true. In this case, the chattel mortgage to Maria Macdonald was drawn up on January 18, 1882. This mortgage, and the one to the Gibbs & Sterrett Manufacturing Company, were executed on the afternoon of January 19, 1882. They were filed in the office of the register of deeds on the same day. The deed of assignment was executed on January 20, 1882, and filed for record at

9 A. M. of that day. It is true that the defendant had agreed to make a general assignment at the time of the execution of the chattel mortgages, and, in fact, closed his store on the evening of January 19th with the view to an assignment; yet these facts do not establish that the chattel mortgages and the general assignment were intended to constitute a "single transaction." Indeed, the findings of fact show they were intended to constitute different and separate transactions. The mortgages were made to different parties; were executed and filed prior to the execution of the assignment. Further than this, however, there are many things stated in the opinion of Van Patten v. Burr, supra, that are not wholly satisfactory. It is difficult to say upon what principle or for what reason a chattel mortgage executed in good faith for the benefit of certain creditors upon the same day that the deed of general assignment is executed, must be considered a "single transaction.'

The findings of fact cast a suspicion upon the bona fides of the note executed January 6, 1882, by Macdonald to his wife, and the chattel mortgage securing such note; but there is no finding that the money embraced in the note was intended by the wife as a gift to her husband, or that the note and mortgage were fraudulently executed without consideration; therefore, as the case now comes to us, we cannot affirm the judgment upon the findings of fact. If the chattel mortgage executed by Macdonald to his wife was given in good faith and upon a sufficient consideration, in our opinion it is valid, and Bailey is entitled to have the amount secured by the chattel mortgage paid from the proceeds of the sale of the goods. This conclusion renders it necessary for us to reverse the judgment and direct a new trial.

There is a finding that Macdonald made no express promise to pay the money he received from his wife back to her, excepting after his insolvency. An express promise, however, to repay, is not necessary to be established in order to make the note a valid one. If the note is evidence of a valid and existing debt, then the chattel mortgage secured by it is also valid and binding. At common law, marriage was a gift to the husband of the wife's chattels in possession, and of her power over choses in action. If the husband exercised the power conferred, and reduced the choses into possession during coverture, they became absolutely his property, unless he accompanied the reduction in possession with declarations importing his intention to stand as trustee for his wife. The laws of this state recognize the separate property of married women, and protect that property from the husband's creditors. Of course, a wife may give her money or other property to her husband, and he will not be permitted to give it back, when insolvent, "to save something for his wife and family," if the creditors have any claims against him. While, however, an express promise to repay is not necessary, the circumstances attending the money received by the husband from the wife must prove that they

dealt with each other as debtor and creditor.

Steadman v. Wilbur,

7 R. I. 481. If the money received by Macdonald from his wife. was loaned to him, it thereby created a valid indebtedness in her favor, and she had the right to accept the note and the chattel mortgage. Monroe v. May, 9 Kan. 466. On the other hand, the wife cannot be allowed, as against the creditors of her husband, to convert the receipt of the money by him into a debt, if the receipt at the time was intended as a gift to assist him in his business. Bump, Fraud. Conv. 304.

If the trial court had made its findings upon the matters referred to, we could have disposed of the case here; but in the absence of a finding whether the money received by the husband was given as a loan or a gift, to assist him in his business, we cannot say all the facts were found by the trial court. As that court considered the chattel mortgages and the assignment one instrument, it did not, we suppose, deem it necessary to pass upon the question of the bona fides of the indebtedness of $1,500 embraced in the note and mortgage. The answer expressly alleged that the chattel mortgage was executed without any consideration, and that the wife had notice of this. The reply denied this allegation, and this issue of fact should have been passed upon in the findings.

The judgment of the district court will be reversed, and the case will be remanded for a new trial.

VALENTINE, J., concurring.

HURD, J., not sitting in the case.

(32 Kan. 55)

CHICAGO, R. I. & P. R. Co. v. CONKLIN.

Filed May, 1884.

1. The bill of particulars of the defendant in error (plaintiff below) considered, and held to be sufficient.

2. Where the duly-authorized agent of a railroad company receives personal property to be transported as baggage, the railroad company must account for such property as baggage, although in strict language it might not be baggage.

3. Where personal property is received by a railroad company to be transported as baggage, and while it is in the possession of the railroad company, to be so transported, it is lost or stolen, held, that the railroad company is responsible to the owner thereof for its loss.

Error from Atchison county.

VALENTINE, J. This was an action brought before a justice of the peace by William Conklin, against the Chicago, Rock Island & Pacific Railroad Company, to recover damages for the failure on the part of

the railroad company to transport or deliver certain personal property delivered by the plaintiff to the defendant to be transported as baggage. Afterwards the case was appealed to the district court, and, after judgment in that court in favor of the plaintiff and against the defendant for $75 and costs, the defendant, as plaintiff in error, brought the case to this court on petition in error.

The errors complained of are based upon an alleged insufficiency of the plaintiff's bill of particulars. It is claimed-First, that the bill of particulars does not state any cause of action; and, second, that if it does state a cause of action, the cause of action stated is not the one which was proved on the trial of the case in the district court.

The bill of particulars states, in substance, among other things, that the property, which consisted of a certain canvas tent, with poles, ropes, and attachments, was delivered to the agent or baggagemaster of the defendant, at Platte City, Missouri, to be shipped and forwarded, as baggage, on the first passenger train of the defendant, and that the defendant afterwards wholly failed and refused to deliver the property to the plaintiff, but kept and retained the same; and the bill of particulars did not state in terms that the plaintiff was or intended to become a passenger on the defendant's railroad, nor that the defendant was guilty of any negligence; and it is because of these failures on the part of the plaintiff's bill of particulars to state that the plaintiff was or intended to become a passenger, or that the defendant was guilty of negligence, that the defendant below (plaintiff in error) claims that the bill of particulars is insufficient. We think the bill of particulars, however, is sufficient; that it states a cause of action; and that it sufficiently states the cause of action. which was proved.

On the trial it was shown that the plaintiff delivered the property to the station agent of the defendant at Platte City, Missouri, to be transported as baggage on the first passenger train of the defendant going to Plattsburgh, Missouri; that the station agent so accepted such property; that the defendant afterwards wholly failed and refused to deliver the property to the plaintiff; and that the plaintiff, at the time, expected and intended to be a passenger on such passenger train, and had purchased a ticket of the defendant for that purpose.

The facts with reference to the delivery of the property to the defendant's station agent, stated more in detail, are as follows: The plaintiff took the property to the defendant's depot at Platte City, Missouri, and delivered it to the station agent at that place, to be transported as baggage on the first passenger train going to Plattsburgh, and the station agent accepted the property as baggage, but, being busy at the time, did not give the plaintiff any receipt or check or bill of lading for the same, but directed the plaintiff to leave the property with him until he could prepare a bill of lading for the plaintiff, and the plaintiff did so. Afterwards the plaintiff passed out of the depot for a short time, and in a few minutes afterwards returned,

in order to get the bill of lading promised to him by the defendant's station agent; but the property, in the mean time, had been mislaid or stolen, and the station agent refused to give the plaintiff any bill of lading, or to account for the property in any other manner, and neither the station agent nor the defendant has at any time since accounted to the plaintiff for the property. The defendant's station agent knew what the property consisted of and accepted it as bag. gage, and we think the defendant must now account for it as baggage, although it might not, in strict language, be baggage; and, as the property was lost while in the possession of the defendant, we think the defendant is responsible for its loss.

The judgment of the court below will be affirmed.

HORTON, C. J., concurring.

HURD, J., not sitting.

22 Kan. 49)

KORMAN V. HENRY and another.

Filed May, 1884.

A mortgage of intoxicating liquors, executed for no other purpose than to secure a promissory note, is void, for the reason that it contravenes the provisions of chapter 128 of the Laws of 1881, commonly known as "the prohibitory liquor law."

Error from Leavenworth county.

VALENTINE, J. This was an action of replevin brought by B. Kor man against J. Henry, a constable, and James J. Moonan, his deputy, to recover the possession of certain articles of personal property held by the defendants, as officers, under a writ of attachment against Esther Lyons and others. These articles are intoxicating liquors and the furniture of a drinking-saloon. The plaintiff's claim to the prop erty is founded solely upon a chattel mortgage executed to himself by said Esther Lyons and S. Lyons. The mortgage was executed to secure the payment of a certain promissory note for $250.36, and was executed and filed in the office of the register of deeds four days before the attachment was served. The court below rendered judgment in favor of the defendants and against the plaintiff for the recovery of the property and for costs; and the plaintiff, as plaintiff in error, now seeks to have such judgment reversed.

Upon the foregoing facts we think the only question to be determined by this court is whether the plaintiff's chattel mortgage is valid or not. If it is valid, we think he is entitled to recover; but if it is not valid, then we think the defendants are entitled to recover.

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