Lorie v. Adams

1. Instbuctions, to be Applicable. The instructions given by a trial court should be applicable to the issues in the case and the facts disclosed upon the trial. 2. Conflicting Evidence — Jury—Court. A trial court ought not, in its instructions to a jury, to intimate that any fact is established, where there is conflicting evidence concerning the same, the determination of which is the exclusive province of the jury. 3. Chattel Mobtgage —Validity as to Attaching Creditors — Erroneous Instruction. Where the mortgagor is permitted to retain possession of a stock of mortgaged goods, and sell the same in the regular course of trade, without any agreement or understanding as to what shall be done with the proceeds, the chattel mortgage is void as against attaching creditors, although it is given to secure an actual existing indebtedness, and is properly filed for record; but if properly filed for record, then if, in a contest between the mortgagee and attaching creditors, there is a conflict in the evidence whether the mortgagor was permitted to retain possession and sell the stock in the regular course of trade, without any understanding as to the proceeds of the sales, it is error to instruot the jury “that, as a matter of law, before the mortgagee can recover, he must satisfy you by a preponderance of the evidence that he took possession of the stock of goods after he recorded his mortgage.”

Error from Chautauqua District Court. On the 11th day of August, 1888, Joseph Lorie commenced his action in replevin against J. J. Adams, sheriff of Chautauqua county, to recover a stock of merchandise of the alleged value of $2,000. The case was tried on the 23d day of November, 1889, before the court, with a jury. The jury returned a verdict for Adams, the sheriff, and assessed the value of his interest at $741.55. Lorie filed a motion for a new trial, which was overruled and excepted to. He claimed the property in controversy by virtue of a chattel mortgage given to him by Moritx Lorie, his brother, on the 28th day of July, 1888. Adams, the sheriff, claimed the property under three orders of attachment, levied thereon by him after that time at the instance of certain creditors, amounting, with costs, to about $740. At the time of the execution of the chattel mortgage to Joseph Lorie, Moritz Lorie, his brother, lived at Cedar Vale, in Chautauqua county, and had carried on merchandising there for several years. The court, among other things, instructed the jury as follows: “Before any person will be entitled to claim property on a chattel mortgage within the state of Kansas, he must either take immediate possession of the property mortgaged, or he must cause his mortgage to be filed for record in the office of the register of deeds of this county, in case he leaves the property in possession of the mortgagor. In this case, the plaintiff claims that he caused this mortgage to be recorded in the office of the register of deeds of this county at the time he took it, and that, at the same time, he took possession of the stock of goods. As a matter of law, before he can recover, he must satisfy you by a preponderance of the evidence that he did take possession of this stock of goods after he recorded his mortgage. A mortgage made upon a stock of goods, which leaves the mortgagor in possession to sell out and continue the business in the usual way, would be void under the law; so that plaintiff must satisfy you that he did, by himself, or some other person as his agent, take possession of the stock of goods and continue to hold possession in good faith before he will be entitled to recover in this case. In order to take such possession as would entitle the plaintiff to recover, he must satisfy you by a preponderance of the evidence that he took possession of the stock of goods in some such way as would notify the people that there had been a change in the possession of such stock of goods. . . . The plaintiff would have no right to recover in this case, even though you should believe that there was a bona fide indebtedness, if you believe from the evidence the plaintiff was aiding his brother to hinder, delay or defraud his creditors. ... In addition to what the court has said, a mortgage executed by one person to another person can be of no force and effect until it is delivered. If I should make to one of you a mortgage on my horse and buggy at home, and never deliver it, you can claim no rights under it. It is just as necessary that it be delivered to the person who is entitled to receive it, or to some person for him, as it is that the mortgage shall be executed in the first instance. So, in this case, before the plaintiff can receive any benefit under this mortgage, he must show that it was delivered to some person for his use and benefit. It need not be delivered to him personally, but to some person representing him. It must have been either delivered to him or some person authorized to take it for him in the transaction, and, if it was so delivered, it was sufficiently delivered. A mortgage that is not delivered to the person entitled to receive it, or to some person authorized to receive it for him, is a mere voluntary mortgage, and of no validity.” Joseph Lorie excepted to the rulings of the court and to the judgment, and brings the case here. The plaintiff in error complains of the charge itself, and insists that this charge, under the law and the evidence in the record, is erroneous, inapplicable, and throughout usurps and invades the province of the jury. There was no issue whatever raised in this case by the ■ evidence as to the delivery to the plaintiff of the mortgage in controversy; and the instruction, in the elaborate manner in which it was given by the court, upon the question of delivery, being wholly inapplicable to the evidence, and also a misstatement of the law upon that question, was certainly prejudicial to the rights of the plaintiff, in directing the minds of the jury into a channel of inquiry not proper under the evidence. The court also said.to the jury: “As a matter of law, before the plaintiff can recover, he must satisfy you by a preponderance of the evidence that he took possession of this stock of goods; he must satisfy you by a preponderance of the evidence that he did take possession of this stock of goods in some such way as would notify the people there that there had been a change in the possession of such stock of goods.” This was erroneous. The statute presumes possession when an instrument is filed for record, and if such is not the case, it is the duty of the adverse party to prove it. Fra/nkhouser v. Ellett, 22 Kas. 127. The court, in saying to the jury, as a matter of law, that the plaintiff must show that he had possession of this stock of goods, as well as all that is said in that connection, invades the province of the jury. This charge also misstates the law upon participation of the mortgagor in the proceeds of sales of mortgaged goods. Whitson v. Griffis, 39 Kas. 211; Cameron v. Marvin, 26 id. 625; Muse v. Lehman, 30 id. 518; Leser v. Glaser, 32 id. 546. The court misinstructed the jury upon the question of participation of the plaintiff in the knowledge of any fraudulent intent on the part of the mortgagor. Tootle v. Coldwell, 30 Kas. 125; Kennedy v. Powell, 34 id. 22; Chapman v. Summerfield, 36 id. 610; Baughman v. Penn, 33 id. 504; Bailey v. Manufacturing Co., 32 id. 73. We contend that the exception to the instructions of the court is not sufficiently explicit to be of any avail. See Fleming v. Latham, 48 Kas. 773; Young v. Youngman, 45 id. 65; Bailey v. Dodge, 28 id. 72; Fullenwider v. Ewing, 25 id. 69; Ryan v. Madden, 46 id. 245; Haale v. Struve, 38 id. 326; Bard v. Elston, 31 id. 274, and cases cited; The State v. Wilgus, 32 id. 126, and cases cited. See, also, Patrióle Red Sandstone Go. v. Skoman, 29 Pac. Rep. 21; Meeker v. Gar della, 23 id. 837; Maling v. Grummey, 31 id. 600. Exceptions to instructions in a mass cannot be considered upon appeal. Pitman v. Molesberry, 49 Iowa, 339; Reeves v. Harrington, 52 N. W. Rep. 517; Steffenson v. G. M. & St. P. Rly. Go., 53 id. 800; Gar roll v. Williston, 46 id. 352. The petition in error in this court does not complain of any specific error in the instructions of the trial court. The plaintiff in error made no request of the court for any particular or specific instructions to the jury; hence, there is no cause for complaint on such grounds. It is fully established by the evidence that this mortgage was not given in good faith, to secure an actual, bona fide indebtedness, but that the real purpose of it was to keep property out of the hands of the other creditors of Moritz Lorie. Upon this feature of the case the plaintiff in error must fail for lack of sufficient evidence. Plaintiff in error also failed to establish, by any sufficient evidence, that he had taken any possession of this property whatever under his mortgage. The evidence also failed to show that this mortgage was ever filed for record in the office of register of deeds of Chautauqua county, Kansas. The court instructed the jury upon all the propositions that the plaintiff below attempted to establish by any evidence. Instructions given to a jury should be taken and considered together as an entirety. Gain v. Wallace, 46 Kas. 138; G. B. U. P. Rid. Go. v. Andrews, 41 id. 383; Meibergen v. Smith, 45 id. 405; Lawder v. Henderson, 36 id. 754.