with Andrews about this property. A. Yes, sir; after I came back from New York to remain here. I haven't been away from here since 1878. Q. State what that conversation was, and what R. S. Andrews stated to you about this property? Objected to by plaintiff; sustained; defendant duly excepting. Q. Were you in this city in 1876? A. Yes, sir; I was away for a year and a half-1875 and 1876-in 1876 up to September, 1876."

This action was originally commenced September 13, 1878. It appears from the foregoing that the statements sought to be introduced were not only competent, but were material and important; therefore the judgment of the district court should be reversed.

(40 Kan. 216)

LONG . HINES et al.

(Supreme Court of Kansas. January 7, 1888.)

CHATTEL MORTGAGES-AFTER-ACQUIRED PROPERTY-RIGHTS OF CREDITORS.

Where a chattel mortgage is given on an unplanted crop of corn, which is afterwards planted and grown, but, before possession is taken thereof by the mortgagee, a creditor of the mortgagor causes an execution to be levied thereon, held, that the mortgage created no lien on the corn that will defeat the levy of the execution; and the fact that the mortgage was filed for record before the levy was made will not charge the execution creditor, or subsequent purchasers without notice. (Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Miami county; J. P. HINDMAN, Judge.

On the seventh of March, 1885, Daniel Hines executed and delivered to William and Joseph Hines, defendants in error, a chattel mortgage upon property described as follows: "Forty acres of growing flax and forty-five acres of growing corn, on the south-west quarter of section 7, township 19, range 22, in Miami county,"-the consideration therein being to secure said William and Joseph Hines from loss by reason of their indorsement of two notes aggregating $300; and said chattel mortgage was duly filed for record on the ninth day of March, 1885. On October 21, 1885, A. W. Long, plaintiff in error, as constable, levied upon 45 acres of growing corn on the land above described, as the property of Daniel Hines, by virtue of an execution issued by a justice of the peace of the city of Paola, in said county, on a judgment duly rendered before said justice of the peace against said Daniel Hines. On November 7, 1885, the defendants in error commenced this action of replevin in the district court of Miami county against said constable for the possession of said 45 acres of corn claimed by them as the corn described and named in the chattel mortgage from Daniel Hines to them. At the time of the execution of said chattel mortgage, neither the flax nor the corn mentioned therein had been planted. Afterwards 45 acres of corn were planted, and 40 acres of flax sown, and it was agreed that the corn mentioned in the chattel mortgage was that same corn that was afterwards planted by said Daniel Hines, and the same that was levied upon by execution, and that prior to the levying of said execution nothing had been done by said mortgagees towards taking possession of the corn, and nothing was done by the said mortgagor and mortgagees towards ratifying or making valid said chattel mortgage. The case was tried before the court, and judgment rendered in favor of the mortgagees for the possession of the corn. The constable brings the case here for review.

Thos. M. Carroll, for plaintiff in error. W. T. Johnston, for defendant in

error.

CLOGSTON, C., (after stating the facts as above.) This was an action commenced by the defendants in error to recover possession of 45 acres of corn claimed by them by virtue of a chattel mortgage executed before the corn described in the mortgage was planted or had any existence. Can this claim

be upheld? We think not. A valid mortgage can only be given upon property which has an actual or potential existence, and corn not planted has neither an actual nor potential life, and being without life or existence there could be no legal transfer, present or prospective, and no pretended transfer could operate upon the crop of corn after being grown; at least, not until after taken possession of by the mortgagees. In this case there was no claim of any chance of possession. Section 9 of an act in relation to chattel mortgages is as follows: "Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, and as against the subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident."

The object of recording a chattel mortgage is to impart notice that the mortgagee has a lien and claim upon the property mortgaged; and, where a mortgage is recorded that is given upon a crop of grain not planted, the mortgage so filed and recorded does not impart a notice that the mortgagee claims an interest therein, but is a direct notice that no mortgage lien is created, and that the mortgagee claims he has no interest therein, and, in substance, as if the mortgagee had there stated that he had no lien or claim or interest in the mortgaged property, for the reason that the property had no actual or potential existence at the time it was so mortgaged. In Jones v. Richardson, 10 Metc. 493, it was said: "Now it is clear, we think, that the record of a mortgage deed is not sufficient notice of a legal incumbrance as to subsequently acquired property; because, by law, no such property could be sold or conveyed thereby; and it would furnish no notice that any property would be afterwards purchased, or, if purchased, that any act would be done to ratify the grant in that respect. As to such property, therefore, the mortgage could not be valid, except as between the parties thereto, unless such goods were delivered by the mortgagor to the mortgagee, with the intention to ratify the mortgage, and the mortgagee retained open possession of the same until the time of the attachment." Also, in Single v. Phelps, 20 Wis. 419, it was held: "If there was no mortgage of file, then, by the imperative operation of the statute, the title of the purchaser must prevail. Now, it is conceded that property not in existence is incapable of legal transfer, and that an instrument purporting to transfer it by way of mortgage conveys nothing. What, then, was the mortgage upon file in the clerk's office? Clearly, not a mortgage, but an instrument inoperative and void, as such, by its very terms. He has, then, no mortgage on file, and both the conditions upon which his rights depend, by statute, as against the purchaser, are wholly wanting." Cameron v. Marvin, 26 Kan. 612, 628, 629; Mowry v. White, 21 Wis. 417; Cudworth v. Scott, 41 N. H. 456; Cressey v. Sabre, 17 Hun, 120; Gitting v. Nelson, 86 Ill. 591; Tomlinson v. Greenfield, 31 Ark. 557; Chapman v. Weimer, 4 Ohio St. 481. This mortgage being void, and the property subject to execution, it is properly levied upon, and the right of possession was in the plaintiff in error.

It is recommended that the case be reversed, with an order to the court below directing that judgment be rendered for the plaintiff in error for the possession of the property, or for the amount of plaintiff's claim and costs.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 251)

FISHER V. FRANKLIN.

(Supreme Court of Kansas. January 7, 1888.,

1. SHERIFFS AND CONSTABLES-AMERCEMENT-JURISDICTION.

Where a judgment is rendered in one county and an execution is issued to the sheriff of another county, and such sheriff fails to return the execution as required by law, proceedings to amerce said sheriff are properly begun in the court out of which the execution issued.

2. SAME FAILURE TO RETURN EXECUTION-VARIANCE BETWEEN JUDGMENT AND EXECUTION.

Where the recitals in an execution show that the judgment upon which it purports to have been issued is for an amount substantially greater than the actual judgment rendered in the case, held, that the officer to whom said execution is issued is not liable to amercement for neglecting to return said execution on or before its return-day.

(Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Shawnee county; JOHN GUTHRIE, Judge.

This was a proceeding to amerce the plaintiff in error, as sheriff of Sedgwick county, Kansas. The facts are as follows: On June 5, 1884, Stephen Franklin recovered a judgment in the district court of Shawnee county against the Topeka Transportation & Omnibus Company, a corporation, for $1,000. On the fifteenth day of September the plaintiff in said action caused an execution to issue on said judgment, directed to the sheriff of Sedgwick county. On the sixteenth day of December the execution was returned by the sheriff, which return recited that he could find no property in his county belonging to the judgment debtor. Afterwards, and in March, 1886, plaintiff filed his motion in the district court of Shawnee county to amerce the sheriff for his failure to return said execution within 60 days. At said hearing the sheriff was permitted to amend his return to show that he in person never received said execution until the sixteenth day of December; but the evidence in addition thereto showed (and it was not disputed) that the execution was received by the under sheriff about the sixteenth day of September, and by him sought to be served, with the result as stated in the return. And it was also shown that during November the sheriff was absent from the state, and was so absent at the time said return ought to have been made. Upon the hearing in the district court the motion was sustained, and judgment rendered against the sheriff for the amount of $1,000, together with $22.65 costs, and $5 additional costs, with 10 per cent. as statutory penalty, added thereto. To review this judgment the defendant brings the case here.

J. D. McFarland, for plaintiff in error. W. A. S. Bird, for defendant in

error.

CLOGSTON, C., (after stating the facts as above.) Where a proceeding is brought to amerce a sheriff for failure to return an execution to the court where the judgment upon which the execution was issued was rendered, such court has jurisdiction, and may compel a return to its orders and executions, and punish by amercement for disobedience. Fay v. Edmiston, 28 Kan. 105; Ghost v. Hill, 11 Neb. 472, 9 N. W. Rep. 642; McNee v. Sewell, 14 Neb. 532, 16 N. W. Rep. 827.

The only remaining question is, was there such a variance between the execution and the judgment upon which it was issued as will excuse the sheriff or save him from amercement? The execution recited that a judgment was rendered against said transportation company for $1,000, and $22.65 costs, and $5 additional costs since the rendition of said judgment. And to support this execution plaintiff offered in evidence the judgment upon which it was issued, which judgment is as follows: "It is therefore considered, ordered, and adjudged by the court that said plaintiff do have and recover of and from

said defendant the sum of $1,000, so found due as aforesaid by the verdict of a jury in this case, together with costs of suit, taxed at $To the introduction of this judgment the defendant objected, for the reason that there was a variance between the judgment and the recitals in the execution; which objection was overruled, and defendant excepted. If this variance will not excuse the sheriff for not having returned the execution within 60 days, as required by law, then the judgment of the court must be affirmed; for the law gives no discretion to the court, and the defendant has shown no other reason why the execution was not returned that would excuse him. The statute under which this motion was made is of a penal character; and, like all other penal proceedings, in its enforcement strict compliance with the requirements of law must be observed. And when a person desires to avail himself of this proceeding, he cannot complain if he is required to strictly conform to the letter of the law; for when it is enforced in many instances it works great hardship to the officer, who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others. And while, as before stated, the court has no discretion in enforcing such proceedings, yet it ought to carefully guard against allowing amercements except in cases where the proceedings have been regularly and strictly followed. In this case the record further shows that the plaintiff suffered no loss by reason of the failure to return the execution, as it was clearly shown at the rendition of the judgment that the judgment debtor was insolvent. In Duncan v. Drakeley, 10 Ohio, 46, the court said: "In proceedings under the statute authorizing the amercement on an officer great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and in its consequences highly penal. There is no trial by jury, and little, if any, discretion left to the court." So also, in Moore v. McCliff, 16 Ohio St. 50: "The plaintiff's right to demand a judgment of amercement, in this case, can rest on no equitable ground, for the neglect of the official duty of which she complains has done her no injury. The execution debtor was wholly insolvent when the judgment was recovered against him, and has continued to be so ever since. Her rights then are purely statutory. And if she makes a clear case for amercement under the statute, it is no defense against her claim that she has not been damnified. The statute under which she proceeded was of a penal character; it affords a summary remedy, without trial by jury, for official delinquency; and, without regard to the amount of damages resulting in fact from such delinquency, it leaves no discretion to the court as to the amount of judgment to be rendered against the delinquent officer." See, also, Bond v. Weber, 17 Kan. 410.

Applying these rules to this case, we find that if the sheriff is to be amerced it must be for the amount named in the execution, which included $22.65 more than that set out in the judgment. Plaintiff insists that he has done all that was necessary for him to do; that the law enjoined and made it a part of the duty of the clerk of the court to tax the costs and insert them in the judgment. Section 593a of the Code of Civil Procedure is as follows: "The several clerks of the district courts shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the court on motion of any person." This statute clearly makes it the duty of the clerk of the court to tax the costs, and when so taxed to insert them in the judgment, and this ought to have been done before the execution issued. No presumption can be entertained in this case. The plaintiff must bring himself clearly within the rules as heretofore suggested. It was his right to have the costs included, and if he desired to enforce a penalty he ought to have seen that the execution was properly issued for the amount named in the judgment. He could have had the judgment corrected and the costs inserted, and then his execution would have been properly issued on the judgment; and be

cause the clerk failed to do his duty will not excuse the plaintiff from proceeding to have the costs taxed. The clerk, like the sheriff, failed to do what the law made it his duty to do; but this failure of the clerk will not authorize the plaintiff to amerce the sheriff, and will not warrant the court to presume that the costs were properly taxed. If that were true, then a sheriff might be amerced upon an execution issued where no judgment had been rendered, simply because the sheriff refused to return the execution. The law would make it his duty to return the execution in that case, although no judgment had been rendered, as it would if issued upon a proper judgment. But where a plaintiff is seeking to amerce a sheriff he must show a valid judgment, and the execution must conform strictly to that judgment. If property had been found subject to seizure on this execution, and the sheriff had levied thereon, and collected the judgment, he would have collected $22.65 more than any judgment had been rendered for. This execution with this excess therein was suflicient to excuse the sheriff for not sooner returning the execution.

We are therefore of the opinion that the judgment of the court below was wrong, and we recommend that the cause be reversed, and remanded to the court below with an order to render judgment for the defendant below for costs.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 246)

MISSOURI PAC. R. Co. v. DELANEY.

(Supreme Court of Kansas. January 7, 1888.)

EMINENT DOMAIN-COMPENSATION-SPECIAL FINDINGS AS TO ELEMENTS OF DAMAGES. On the trial of an appeal from the award of commissioners appointed to condemn a small triangular piece of ground for the use of a railway company, the jury made special findings as to elements of damage, estimating inconvenience, disfigurement, and damage, and stating the amount of each. They were not required to make the special finding as to damage more definite, or to recite and estimate other elements than those two mentioned, but a motion was made to strike them all out. Held that, in this particular case, there were other elements of damage than inconvenience and disfigurement, and that it was not error to overrule the motion.1 (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Atchison county; DAVID MARTIN, Judge.

This was an action brought by the Missouri Pacific Railway Company to condemn certain land of Martin Delaney. From the award of the commissioners, the railway company brings writ of error.

B. P. Waggener, for plaintiff in error. Hudson & Tufts, for defendant in

error.

SIMPSON, C. This was an appeal from the award of commissioners appointed to condemn a small piece of land in the city of Atchison for the use of the railway company.

There are but two assignments of error; and the first is as to the admissibility of certain parts of the testimony of one John Barry, a witness for the plaintiff below. He had stated that he knew the property in controversy; had lived in Atchison since 1872; that he knew the market value of the property before the railway company "took any off;" that the value of the strip taken was from $90 to $100; that the value of the property after the taking off

1 As to what elements of damage may be considered in awarding damages to the owner of land taken for a railroad, see Railroad Co. v. Kuhn, (Kan.) ante, 75; Railroad Co. v. Kregelo, (Kan.) 5 Pac. Rep. 15.