not a creditor of Keeney's at the time when the deed was executed. And it was not intended that the mortgage should cover this land; and, except as to Mrs. Hottenstein, Keeney had an unquestionable right to convey this land to Ware, as a gift or otherwise, hence, Ware's deed cannot be set aside in favor of Northrup.

But passing from the legal aspect of this case, and viewing it only in its equitable aspects, still Northrup must fail. His equity, if he has any, is subsequent in time to Mrs. Hottenstein's, if not subsequent in right. But really Northrup has no equity at all, with regard, to this particular piece of land; his equitable rights extend only to another piece of land and the one which was intended to be mortgaged to him; his rights are to have his mortgage reformed, so as to make it a mortgage upon the particular piece of land that was intended to be mortgaged to him when the mortgage was executed, and then to have his mortgage foreclosed upon that particular piece of land, and not upon the land in dispute. Keeney had the right, as against all the world, except Mrs. Hottenstein, to convey this land to Matilda Ware. A mortgagor always has the right to convey his land, subject to the mortgage; and Keeney having conveyed this land to Matilda Ware by a warranty deed, he undoubtedly had the right to object to a foreclosure of Northrup's mortgage, except upon the land that was intended to be mortgaged; and so had Matilda Ware, and so had Mrs. Hottenstein; and now all these rights are, by virtue of the judgment rendered in the case of Mrs. Hottenstein against Keeney, Ware and others, united in Mrs. Hottenstein, and merged in her greater and superior right. Utley v. Fee, 33 Kan. 683, 7 Pac. Rep. 555.

The plaintiff urges strenuously the rule of law "that wherever one of two innocent persons must suffer loss on account of the wrongful acts of a third, he who has enabled the third person to occasion the loss must be the person who shall suffer." Jordan v. McNeil, 25 Kan. 460, 465; Ayers v. Probasco, 14 Kan. 190; Savings Bank v. Railroad Co., 20 Kan. 520; McNeil v. Jordan, 28 Kan. 7. We do not think that this rule of law can have any application to this case. Northrup cannot be considered as an innocent person in foreclosing his mortgage upon this particular piece of land; for it was never intended that this particular piece of land should be mortgaged to him, or that his mortgage should cover the same. To foreclose his mortgage upon this land would be to wrongfully take advantage of a mistake. Besides, why did Northrup delay filing his mortgage for record for eight days, leaving it invalid as against all the world except Keeney for that length of time, and until after all title had not only passed in fact from his mortgagor, Keeney, but had also passed from his mortgagor, as shown by the records of the county? Are the courts bound to protect Northrup from his own negligence, and this to the injury of innocent parties? And, so far as Northrup is concerned, all the parties are innocent.

If we are correct thus far, it is wholly unnecessary to discuss any of the other questions presented by counsel. We might, however, say that Mrs. Hottenstein had a right to prove that the deed from Mrs. Hottenstein to Keeney was obtained fraudulently; and this although some of the proof might involve conversations had in the absence of Northrup. She had a right to prove the original negotiations had between her and Keeney with reference to the land; and also had the right to prove the final judgment rendered in her favor against Keeney and Ware, although Northrup was not present during such negotiations, nor a party to the action in which such judgment was rendered. This proof shows that Mrs. Hottenstein continued to be the equitable owner of the land notwithstanding the deed to Keeney, and that since the judgment was rendered, and as against Keeney and Ware, she has also been the legal owner of the land. But it is unnecessary to extend this opinion further. The judgment of the court below will be affirmed. (All the justices concurring.)

v.16p.no.6-29

(38 Kan. 362)

JEWELL et al. v. SIMPSON.

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

1. CHATTEL MORTGAGES-RECORDING AFTER LEVY OF EXECUTION.

Where a chattel mortgage is not deposited in the office of the register of deeds, as prescribed by the statute, until after a judgment creditor of the mortgagor levies upon the property described therein, and the mortgagee has no possession of the property mortgaged, the chattel mortgage is void as against the creditor obtaining a lien by his execution and levy. Section 9, art. 2, c. 68, Comp. Laws 1885; Ramsey v. Glenn, 33 Kan. 271, 6 Pac. Rep. 265.

2. SAME BY FIRM HAVING NO INTEREST IN THE PROPERTY.

A chattel mortgage signed and executed by a firm having no title or interest in the property therein described does not convey or transfer the legal or equitable title of the property to the alleged mortgagee.

(Syllabus by the Court.)

Error to superior court, Shawnee county; W. C. WEBB, Judge.

Jetmore & Son, for plaintiff in error. Rossington, Smith & Dallas and P. L. Soper, for defendant in error.

HORTON, C. J. This was an action brought by C. W. Jewell and J. F. Griffin, under the firm name and style of “The Topeka State Bank,” against Benjamin F. Simpson, to recover $400 as damages for the alleged unlawful conversion of 20 head of hogs and 200 bushels of wheat. The plaintiffs claim the property by virtue of a chattel mortgage dated August 18, 1883, given by Davis & Son and A. J. Davis to them to secure the payment of a note for $168.75, executed by the same parties. The property was seized on the thirteenth day of September, 1883, as the property of A. J. Davis, by Benjamin F. Simpson, as marshal, under an execution issued upon a judgment rendered in the circuit court of the United States for the district of Kansas, wherein John Carnes et al. were plaintiffs, and A. J. Davis was defendant, for $792.28 and costs of the suit. The property was sold by Simpson, as marshal, on October 30, 1883. Although the mortgage was executed August 18, 1883, it was not filed for record until September 17, 1883, several days after the property was levied upon. Upon the trial, when the plaintiffs rested with their evidence, the defendant demurred thereto, which was sustained. Of this the plaintiffs complain, and bring the case here.

The only question presented to this court is whether the plaintiffs introduced sufficient evidence to prove their case. If A. J. Davis was the owner of the property embraced in the chattel mortgage, or had any interest therein subject to seizure on execution, then the effect of delaying the filing of the mortgage until after the property was seized on execution rendered it void as against the judgment creditors. The statute 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 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." Section 9, art. 2, c. 68, Comp. Laws 1885.

In Ramsey v. Glenn, 33 Kan. 271, 6 Pac. Rep. 265, it was decided, "if the creditor of the mortgagor of a chattel mortgage levies upon the property embraced in the mortgage, not accompanied by delivery and possession, before the mortgage is deposited in the office of the register of deeds in the manner prescribed by the statute, the attachment is a prior lien to the chattel mortgage. See, also, Tyler v. Safford, 31 Kan. 608, 3 Pac. Rep. 333; Wilson v. Leslie, 20 Ohio, 161; Jones v. Graham, 77 N. Y. 628; Jones, Chat. Mortg. §§

178-237. In McVay v. English, 30 Kan. 368, 1 Pac. Rep. 795, referred to as announcing a contrary doctrine, the mortgage was filed September 4, 1880, and the attachment was not levied until September 6, 1880,-two days thereafter. In that case the contention was that the chattel mortgage was void, because it was not deposited in the office of the register of deeds immediately after its execution. We held that the mere fact that the mortgagee omitted for several days or weeks to file his mortgage would not render it void; but we further held that the filing of the mortgage did not relate back so as to invalidate interests or rights obtained to the mortgaged property by creditors or other persons prior to the filing. In the case of Holden v. Garrett, 23 Kan. 98, also cited as sustaining the contrary doctrine, the mortgage was upon real estate, and the statute relating to the filing of real-estate mortgages was construed to be qualified or limited by the provisions of the statute making judgments liens upon the real estate of the debtor. It was there held that no larger or other interest was taken by the levy of an execution upon real estate than is covered by the lien of the judgment thereon. The decision in that case, on account of the statute relating to judgment liens, is not applicable to chattel mortgages.

If A. J. Davis had no interest in the property seized under the execution, as he testified, the paramount question is, did the chattel mortgage convey to the plaintiffs the property therein described. We think not. The chattel mortgage recites upon its face that the parties of the first part are "A. J. Davis and George Davis." The mortgage is signed "Davis & Son" and "A. J. Davis." A. J. Davis testified that his sons, George Davis and Harry Davis, owned the property on the eighteenth of August, 1883, at the time of the execution of the mortgage; that his boys, George and Harry Davis, were partners together, under the firm name of Davis & Sons; that he did some business for them, on account of one of the boys being a mute, but that he had no interest in the business; that the firm of Davis & Sons had charge of the farm, and owned all the property on the farm, including the hogs and wheat levied upon. A. J. Davis also testified that there was another firm composed of himself and his son George, doing business under the firm name and style of Davis & Son; that it was organized in 1881, and was engaged in selling farm machinery all over the state of Kansas. Upon the evidence of A. J. Davis, it was clearly shown that the firm of Davis & Son, composed of himself and George Davis, were not the owners of the property mortgaged, and, as a firm, had no interest therein; therefore, the mortgage executed by Davis & Son and by A. J. Davis did not and could not convey or transfer the partnership property owned by Davis & Sons,-a separate and distinct firm from Davis & Son. Each of these firms were engaged in separate and distinct occupations. If Davis & Son and A. J. Davis could not convey any legal title to the property embraced in the mortgage on account of all the property being owned by Davis & Sons,-a separate and distinct firm from Davis & Son, then the plaintiffs obtained neither the legal nor the equitable title to the property described in the mortgage, as neither Davis & Son nor A. J. Davis had any legal or equitable title to convey or transfer.

It is suggested, however, that if the mortgage was irregularly signed, through a mutual mistake, that the court could correct the mistake, and reform the mortgage so as to make it the mortgage of Davis & Sons, who were the owners of the property. To this it may be answered that there is nothing in the record showing, or tending to show, that the chattel mortgage was irregularly drawn up or signed through a mutual mistake of the parties. In the body of the mortgage, A. J. Davis and George Davis are recited as parties of the first part. A. J. Davis says the reason he signed the mortgage "Davis & Son" was because one of his boys was absent in Ohio; so, from his own evidence, he intentionally and purposely signed it "Davis & Son." C. W. Jewell, one of the plaintiffs, and the only one who testified, does not claim

that there was any mistake in drawing up the mortgage, or in signing the same. He testified in substance, among other things, that he considered A. J. Davis entirely good at the time of the execution of the chattel mortgage; that he supposed that he (A. J. Davis) was a member of the firm which made the application for the loan; that he said the firm of Davis & Son wanted to borrow the money; that his application was for Davis & Son; that he stated they would put up security on the hogs and wheat; that the application was made in the name of the firm, and the security taken in the name of the firm. As all the evidence introduced upon the trial clearly shows that the firm of Davis & Sons carried on the farm, owned all the property on the farm, including the hogs and wheat mortgaged, and as neither A. J. Davis nor the firm of Davis & Son were the owners of or had any interest in the property mortgaged, the mortgage executed by them did not convey or transfer to the plaintiffs the property in controversy.

The only interest that George Davis had in the property mortgaged was as a member of the firm of Davis & Sons; but Davis & Sons did not convey, nor attempt to convey; therefore George Davis, as a member of the firm of Davis & Sons, made no transfer or conveyance of the property to the plaintiffs. The mortgage does not purport to convey or bind the property of Davis & Sons. Upon the evidence introduced in the case, this action should have been brought in the name of Davis & Sons, the firm composed of George and Harry Davis. If that firm is not estopped from setting up their title to the property in controversy by their actions at the sale or otherwise, they are the parties entitled to recover, if there was any unlawful conversion of the personal property seized by the defendant upon execution.

The judgment of the district court will be affirmed.

VALENTINE, J., concurring. JOHNSTON, J., having been of counsel, did not sit.

(38 Kan. 271)

ST. LOUIS & S. F. RY. Co. v. MORSE.

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

1. DEPOSITIONS-TIME OF TAKING.

It is error for the court to suppress a deposition for the reason only that it was taken during the term at which the case stood for trial.

2. SAME-MOTION TO SUPPRESS.

It is error for the court to entertain an oral motion to suppress a deposition.

8. SAME TIME TO MAKE MOTION.

It is error for the court to entertain a motion made to suppress a deposition after the jury has been impaneled and sworn.

(Syllabus by the Court.)

Error to district court, Green wood county; CHARLES B. GRAVES, Judge. Kirkpatrick & Vestal and John O'Day, for plaintiff in error. D. B. Fuller, for defendant in error.

VALENTINE, J. This was an action brought by L. E. Morse against the St. Louis & San Francisco Railway Company, to recover the sum of $499. The issues were made up between the parties by the defendant's filing its answer to the plaintiff's petition, on August 8, 1885. The record then shows, among other things, as follows: "Afterwards, and on the eighteenth day of December, 1885, said cause was regularly called for trial. A jury was duly impaneled and sworn and took their seats in the jury-box, and thereupon the plaintiff, by her attorneys, moved the court orally, to suppress the deposition of John O'Leary, taken at Oswego, Kansas, on the tenth day of December, 1885, for the reason, and only reason, that said deposition was taken during the term of court at which said case stood for trial. In support of the motion it was conceded that a notice in due form was served on the plaintiff on the

eighth day of December, 1885, to take the deposition on the tenth day of December, 1885. It was further admitted that the notice was in every way regular, and allowed the plaintiff sufficient time, as provided by statute; and it is further admitted that on the second day of December this case was, by the consent of both parties, set down for trial on the eleventh day of December, 1885. It is further admitted that by the usual route of travel, plaintiff, after the service of said notice, could have had one whole day for preparation, and could have reached the place where said deposition was taken at the time named in the notice. It was further admitted that if the deposition had been completed on the tenth day of December, it could have reached this court by the usual course of mail before 5 o'clock P. M. of the eleventh of December. It is further conceded that the deposition did reach the court on the eleventh day of December." It is further shown by the defendant, in substance, that the defendant's counsel did not know of the witness O'Leary, or his evidence, until after the case had been set for trial. The record then shows, among other things, as follows: "And thereupon the court suppressed said deposition, and refused to allow the same read to the jury, to which ruling and decision the defendant excepted. It was admitted by the court and counsel for the plaintiff that the deposition was both material and important for the defendant, and thereupon the defendant moved for a continuance of said cause, for the reason that said deposition was suppressed, which motion the court sustained, on condition that the defendant would pay the costs of the case, which would have aggregated, at that time, about $75. The defendant refused to pay these costs and to accept the terms imposed, and thereupon its application for a continuance was overruled, and the trial ordered to proceed, to all of which the defendant duly excepted at the time." The following sections of the Civil Code have application to this case, towit:

"Sec. 361. Every deposition intended to be read in evidence on the trial, must be filed at least one day before the day of trial."

"Sec. 363. Exceptions to depositions shall be in writing, specifying the grounds of objection, and filed with the papers in the cause.

"Sec. 364. No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.”

Unquestionably, the court below erred in suppressing the deposition in this case, as it did, for the "only reason that said deposition was taken during the term of court at which said case stood for trial." Northrup v. Hottenstein, ante, 445, just decided. There is no statutory limitation with respect to the time within which depositions must be taken or filed, except that they "must be filed at least one day before the day of trial." Civil Code, § 361. The court also erred in entertaining the oral motion of the plaintiff below to suppress the deposition. Civil Code, § 363. And the plaintiff in error, defendant below, claims that the court below also erred in entertaining the plaintiff's motion made to suppress the deposition after the jury had been impaneled and sworn. The plaintiff in error claims that a trial is commenced when the court and the parties commence to impanel the jury; that then the real contest begins; and this for the reason that the parties then examine and cross-examine the jurors upon their voir dire, to ascertain their competency, and to know whether to challenge any of the jurors, either for cause or peremptorily. We shall not decide this question. It would be well, however, if, in cases of this kind, such were the law as counsel for plaintiff in error claims; but ordinarily the word "trial" has a more limited signification.

For errors above mentioned, the judgment of the court below will be reversed, and cause remanded for a new trial.

(All the justices concurring.)