deed of assignment. At the time said Adamз was asked to accept said trust, and to sign the acceptance, he had no actual knowledge of the execution of said mortgages, but did have such knowledge immediately thereafter when the papers were handed to him." The mortgages and deed of assignment were properly filed for record, and Adams, the assignee, took possession of all the mortgaged and assigned property, and held it all until December 7, 1886. Afterwards various attachments were issued from the circuit court of the United States and the district courts of Harper and Kingman counties, and all the mortgaged property was taken on such attachments from Charles P. Kellogg & Co. A portion of the mortgaged property is now the subject of this controversy. That portion which is now in dispute was a part of the stock or goods kept at Harper. On December 16, 1886, it was taken upon two writs of attachment issued from the United States circuit court in favor of two different plaintiffs and against Townley, and it was taken by W. C. Jones, the United States marshal, and T. W. Thompson, a deputy United States marshal, and the portion thus taken was of the value of $4,600. About July 28, 1887, Mrs. Townley executed an instrument in writing to Charles P. Kellogg & Co., in substance giving to their mortgage priority, and giving to them the prior rights in and to the mortgaged property. There is some question as to whether this instrument was ever properly delivered to Charles P. Kellogg & Co. or not. On January 10, 1888, Charles P. Kellogg & Co. commenced this present action in the district court of Shawnee county against W. C. Jones and T. W. Thompson for $7,000 as damages claimed to have resulted from the alleged wrongful and unlawful seizure of the property by Jones and Thompson. The case was afterwards tried before the court without a jury, and the court made special findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of Charles P. Kellogg & Co. and against Jones and Thompson for $4,600, with interest amounting to $778; total, principal and interest, $5,378; and for costs of suit; and the defendants, as plaintiffs in error, bring the case to this court for review.

No real or actual fraud was shown in the case to invalidate either of the mortgages or the deed of assignment, or to uphold the writs of attachment under which the defendants below acted, hence the plaintiffs below claim that the mortgages and deed of assignment are unquestionably valid, and that, under their mortgage and their possession, they had the prior right to the property, and that Mrs. Townley came second, and the assignee third, and that the defendants below had no right as against any person whatever; while the defendants below (plaintiff's in error) claim that, as the two

mortgages and the deed of assignment were executed substantially at the same time, and substantially as parts of the same transaction, they were and are all utterly void; and therefore that, as they, the defendants below, actually obtained the possession of the property, and held the same under the writs of attachment, they had the better right to the property, whether there was any real or actual fraud or not to invalidate the mortgages and the assignment or to sustain and uphold their attachments. While there is nothing to show that any real or actual fraud intervened, yet it is the opinion of this court from the findings and the evidence that the mortgages and the deed of assignment were executed at substantially the same time, and as parts of substantially the same transaction. They were all drawn up the same day, to wit, November 28, 1886, were all dated the same day, to wit, November 29, 1886, and were all executed in pursuance of a single determination formed by Townley to execute them, and this determination was not entertained by him until the day on which they were drawn up to be executed; and therefore, under the following decisions, both the mortgages and the attachment must be held to be absolutely and entirely void, and the assignment to be absolutely and entirely good and valid, and the assignment must be held in law to take all the property in dispute, as well as all the other property attempted to be mortgaged or assigned, and leaving nothing for either the mortgages or the writs of attachment to operate upon. The writs of attachment were themselves valid on their face, but did not run against Adams, the assignee, nor against Mrs. Townley or Charles P. Kellogg & Co., the mortgagees, but did run against Townley, the person who had formerly owned the property. The decisions above referred to with reference to assignments, mortgages, and attachments are the following: Wyeth Hardware Co. v. Standard Imp. Co., 47 Kan. 423, 28 Pac. Rep. 171; Watkins Nat. Bank v. Sands, 47 Kan. 591, 28 Pac. Rep. 618; National Bank of Lawrence v. Sands, 47 Kan. 596, 28 Pac. Rep. 620; Brigham v. Jones, (decided June 11, 1892, upon a rehearing.) 48 Kan. 162, 30 Pac. Rep. 113. There are some distinctions which might be observed between this case and those above cited, but it is not thought by this court that they require comment.

It is claimed by the defendants in error (plaintiff's below) that the mortgage given to Charles P. Kellogg & Co. was not given by Townley of his own volition and unsolicited, as were the mortgages mentioned in the cases above cited, but was given because of importunities, demands, and active vigilance on the part of Charles P. Kellogg & Co., through their agents, in attempting to collect their claim, or to obtain security thereon, and because of a promise on the part of Townley, the debtor, made several days be

fore the execution of the mortgage, and before the assignment was contemplated, to give security upon the claim if trouble should arise. These things are not thought by this court to be material, however, for the reason, among others, that no intention was really formed by Townley to execute any mortgage to Charles P. Kellogg & Co. until the intention was also formed by him to execute a general deed of assignment for the benefit of all his creditors. When the mortgage was executed it was not the carrying out of an agreement previously entered into between the parties upon a new and sufficient consideration passing at the time when the agreement was made, and an agreement intended to be fulfilled by one of the parties in executing a mortgage to the other, but it was simply the carrying out of an intention formed at the very time that another intention was also formed to execute a general deed of assignment. It does not appear that anything was said prior to this time with regard to mortgages, or that any new consideration passed for the mortgages; hence, as before stated, the mortgages must be considered as void. If the mortgages were valid, of course the plaintiffs would be entitled to recover in this action, but, considering them as void, then, what are the plaintiffs' rights? With the views that we have already expressed that the deed of assignment is the only valid instrument or thing upon which the property in dispute could be lawfully taken or held, and that it is wholly valid, and that under it all the property attempted to be assigned or mortgaged or afterwards attached should be held, and that the mortgages and the attachments are all absolutely and utterly void, and can legally take nothing nor effect any rights, it would seem that the same result would follow, for the rights of Kellogg & Co. would still be prior, superior, and paramount to those of Jones and his deputy. Kellogg & Co., at and prior to the time when Jones and his deputy seized the goods and took them from the possession of the plaintiff below, had the exclusive possession thereof, with a claim of absolute right thereto, and with the consent of the only person in the world—the assignee-who had any lawful right to the possession thereof, and who surrendered it to them to secure the payment of just debts; while Jones and his deputy at that time, in seizing the property and taking it away from the possession of the plaintiffs, were mere intruders, wrongdoers, and trespassers. Kellogg & Co.'s possession, with their claim of right, was good as against the claims of all the world except those of the assignee, Adams, and no one else had any right to disturb their possession. Indeed, prior possession, with a claim of right, is title. In the case of Hubbard v. Lyman, 8 Allen, 520, which was an action in the nature of trover for the conversion of a quantity of tobacco, the following was decided: "An attachment upon a

writ against an insolvent debtor of property which belonged to him before his insolvency will render the attaching creditor and others who take the property under the attachment liable as for a conversion to one who was in possession of it at the time of the attachment under a claim of title." Judge Hoar, in delivering the opinion of the court in this case, used the following, among other, language: "The plaintiff was in possession of the property when it was taken from him by the authority of the defendant, and he held it under a claim of title. He can maintain his action, therefore, unless the defendant can show a better title. The only title set up by the defendant is as a creditor of William Brown, under an attachment of the tobacco as Brown's property. But it is very clear that the property was not Brown's at the time of the attachment, because all his right in it had passed by the assignment in insolvency to his assignee. If the plaintiff's possession was not lawful, the assignee in insolvency was the only party entitled to call him to account. These considerations are decisive of the case." The case of Krewson v. Purdom was an action in the nature of trover for the conversion of certain wood. The case was taken to and decided by the supreme court of Oregon three different times. 11 Or. 266, 3 Pac. Rep. 822; 13 Or. 563, 11 Pac. Rep. 281; 15 Or. 589, 16 Pac. Rep. 480. It appears that in that case Krewson, the plaintiff, did not by any competent evidence show any better title in himself than mere actual possession with a claim of ownership. The property in fact, it would seem, belonged to Gotard & Co. The defendants, Purdom and Slocum, were the sheriff and deputy sheriff of the county, and they levied a writ of attachment upon the property as the property of Maria & Co., but they were unable to show that the property belonged to Maria & Co. It was finally and in the last decision held that the plaintiff's possession was sufficient to enable him to maintain the action as against any mere intruder for converting it, and that the defendants were mere intruders; and the judgment which had previously been rendered in the lower court in favor of the plaintiff and against the defendants for the value of the property was sustained and affirmed. See, also, the following cases: Pomeroy v. Smith, 17 Pick. 85; O'Brien v. Hilburn, 22 Tex. 616; Lowremore v. Berry, 19 Ala. 130; Bliss v. Winslow, 80 Me. 274, 13 Atl. Rep. 899; Schley v. Lyon, 6 Ga. 530; and the decisions hereafter cited and referred to.

This present action is in the nature of trespass de bonis asportatis and of trover, and authorities with respect to either of these actions may be applicable to this. Mr. Lawson, in his work on Rights, Remedies & Practice, (volume 7, § 3664,) uses the following language: "Possession alone is sufficient to enable one to bring trover. The defendant cannot defend by showing that the title

to the chattels is in a third person." Many authorities are cited in support of this proposition. Mr. Freeman, in his note to the case of Harker v. Dement, 52 Amer. Dec. 678, [9 Gill. 7,] uses the following language: "One entitled to the present possession of chattels may recover in trover against a mere stranger or wrongdoer the full value thereof, with interest from the time of the conversion; but against the general owner, or those claiming under him, such plaintiff can recover only the value of his interest, and if the value of his interest equal or exceed the value of the chattel converted, then to the extent of the value of such chattel only." Mr. Wait, in his work on Actions & Defenses, (volume 6, p. 216,) uses the following language: "It is said in some of the cases, and laid down as a rule in some of the text-books, that a person must have a general or a special property in the property sought to be recovered for; but this can hardly be admitted. It is true that a general or a special owner may maintain the action when they are entitled to the possession of the property instanter, but it is also true that a person having no property interest therein may in certain cases maintain the action also. Mere naked possession, as against one holding no better title, is sufficient, if the property is wrongfully taken out of his possession, (Cook v. Patterson, 35 Ala. 102; Knapp v. Winchester, 11 Vt. 351; Carter v. Bennett, 4 Fla. 283; Coffin v. Anderson, 4 Blackf. 395;) and even a person who has acquired possession of the goods by a trespass may maintain the action against one who takes them from his possession without a better right." Page 216. "Mere naked possession, however acquired, is good as against a person having no right to the possession." Page 218. "According to the weight of authority in this country, the defendant in trover cannot set up the title of a third person in defense, unless he in some manner connects himself therewith." Page 221. "In an action against a stranger he is entitled to recover the value of the property converted, and holds the balance beyond his own interest for the benefit of the general owner, (Ullman v. Barnard, 7 Gray, 554) and such is the rule in all cases where the plaintiff is liable over to a third party, and the same is true in all cases where the defendant is not entitled to the balance of the value." Page 223. In Cooley on Torts (page 444) it is stated: "It has often been decided that possession alone is sufficient to enable one to maintain the action of trover; and in a leading case, always since recognized as authority, the finder of a jewel was held entitled to bring trover against one who, having taken the jewel for examination, refused to restore it. In this respect I see no difference between trespass and trover; for, in truth, the presumption of law is that the person who has possession has the property. Can that pre

** ** **

sumption be rebutted by evidence that the property was in a third person, when offered as a defense by one who admits that he himself had no title, and was a wrongdoer, when he converted the goods? I am of the opinion that this cannot be done.' Jeffries v. Railway Co., 5 El. & Bl. 802. In Weymouth v. Railway Co., 17 Wis. 569, it is held: "In trover by the party from whose possession property was taken the defendant cannot defeat a recovery by showing title in a third person without connecting himself with that title." In Harker v. Dement, supra, the court, in delivering the opinion, say: "The defendant, having failed to connect himself with the estate of Richard Dement, occupied the position of mere tort feasor, who had invaded the possession of the plaintiff without authority, and under such circumstances it is very clear that he could not be permitted to prove that the title to the property in dispute was not in the plaintiff, but was at the time of the conversion outstanding in a third party, with whom he had no connection or privity, to defeat the action, or in mitigation of damages. * But in an action against a stranger and wrongdoer, who has been guilty of an asportation or conversion of the property, the plaintiff is treated as the absolute and unqualified owner of the property, and he is entitled to recover its full value." In Knapp v. Winchester, 11 Vt. 351, it is remarked that "in the action of trover, possession, whether rightfully or wrongfully obtained, is a sufficient title in the plaintiff as against a mere stranger." In Carter v. Bennett, 4 Fla. 284, 355, it is observed: "It is surely not necessary to quote authority to prove that in trover, possession, whether rightfully or wrongfully obtained, is sufficient title in the plaintiff as against a mere stranger.'" In Duncan v. Spear, 11 Wend. 54, it is said that "trover may be maintained against a stranger upon mere prior possession, obtained by a purchaser of chattels under a void execution. A defendant in trover cannot set up property in a third person without showing some claim, title, or interest in himself, derived from such person." In Burke v. Savage, 13 Allen, 408, it is decided that "possession of personal property under claim of title is sufficient to entitle the possessor to maintain an action for its conversion against anybody who does not show a better title." In Harrington v. King, 121 Mass. 269, the court in the opinion use this language: "It is a leading principle that bare possession constitutes sufficient title to enable the party enjoying it to obtain a legal remedy against a wrongdoer. * * It is settled that a bailee who is responsible over to the owner is entitled to recover the full value of the goods, and that such recovery will be a good bar to an action by the latter." In Taber v. Lawrence, 134 Mass. 94, the action was for the conversion of goods sold by one Pratt to plaintiff. Pratt, before the

If

sale, had made an assignment of his property for the benefit of his creditors. The defendants attached the goods as the property of Pratt. A portion of the goods belonged to Pratt before he made his assignment. Morton, C. J., in delivering the opinion, referring to these goods, says: "But we are also of opinion that the ruling was erroneous so far as it related to property which belonged to Pratt before the insolvency. In trover, possession of the goods under a claim of title is sufficient evidence of property as against one who shows no better right. 2 Greenl. Ev. 637; Burke v. Savage, 13 Allen, 408. The only title set up by the defendants is under an attachment of the goods as the property of Pratt. his assignees are entitled to it under the assignment, the attachment is invalid, and they are the only parties who have the right to call the plaintiff to account. Hubbard v. Lyman, 8 Allen, 520; Pomroy v. Lyman, 10 Allen, 468. The defendants show no title to the property, but are mere strangers and trespassers. As against them, the possession of the plaintiff under a claim of right is sufficient evidence of title in him to enable him to maintain this action." See, also, the following authorities: 1 Suth. Dam. 210; 3 Suth. Dam. 524; Burke v. Savage, 13 Allen, 408; Vining v. Baker, 53 Me. 544; Haslem v. Lockwood, 37 Conn. 500; Bartlett v. Hoyt, 29 N. H. 317; Ward v. Wood Co., 13 Nev. 44; Gilson v. Wood, 20 Ill. 37; Brown v. Ware, 25 Me. 411; Edwards v. Frank, 40 Mich. 616; Railroad Co. v. Tabor, 13 Colo. 41, 21 Pac. Rep. 925. Title to personal property can generally be proved only by proof of possession, for, as a general rule, no records or writings of personal property titles are kept. Title in such cases is usually established by showing who had the original or the prior possession, and then by showing all the changes of possession or transfers from the party holding the original or the prior possession down to the time in question; and prior possession, if no better right is shown in favor of the adverse party, will always prevail. Possession is not only evidence of title, but, as against any person having no better right, it is title itself. 20 Vin. Abr. 278. "The general rule is that possession constitutes a suflicient title against every person not having a better title." Broom, Leg. Max. 638. "Possession is a right of property against all the world but the owner." Cobbey, Repl. § 136, and cases there cited. This is true even with respect to real estate. Mooney v. Olsen, 21 Kan. 691, 697.

We decide this case upon the theory of the defendants in error (plaintiffs below) that prior peaceable possession, with a claim of ownership or right, is good as against all the world except the real owner, or one holding or claiming under him. In this case Kellogg & Co. had, as before stated, the actual, quiet, peaceable, and exclusive posses

sion of the property, with a claim of right thereto, and with the consent of all persons who had any right to interfere with the same. They claimed under chattel mortgages which in terms gave to them the absolute right to the possession of the property, and in this state, as well as at common law, the mortgagee of personal property, with a right to the possession thereof, holds the legal title. The amount of Kellogg & Co.'s claim and of the mortgage debt were greater in this case than the value of the property in controversy, and the judgment rendered by the court below was for a less amount than their claim. As to the defendants below, Kellogg & Co. had the absolute right to the property, and such defendants had no right thereto; therefore the defendants below are now responsible to Kellogg & Co. for it, while they, Kellogg & Co., are responsible to Adams, the assignee, for the same, and in the settlement of the estate they must account to him. After the defendants seized the property, and took it from the possession of Kellogg & Co., they might have connected themselves with Adams, the assignee, who held the prior right to the property, by turning it over to him, or holding it subject to his orders, and this might have been pleaded and proved on the trial in mitigation of damages or to reduce the damages to a mere nominal sum; but nothing of this kind was done. The defendants seized the property in hostility to the rights of all the parties, not only to those of Kellogg & Co., but also to those of the assignee; and they are responsible to Kellogg & Co., and they, Kellogg & Co., are in turn responsible to Adams, the assignee. We think that, as Kellogg & Co. received the goods in dispute from Adams, the assignee, with his consent, and held peaceable possession there- . of, the recovery by them against Jones will be a bar to another action by the assignee against him. If Adams, the assignee, has failed to discharge his duty, or has improperly executed his trust by turning over to Kellogg & Co. any property of the insolvent debtor, he is liable upon his official bond. 3 Suth. Dam. 474; Schouler, Bailm. (2d Ed.) 54; Story, Bailm. 94; Luse v. Jones, 39 N. J. Law, 707; Harrington v. King, supra. The petition of Kellogg & Co., among other things, contains the following allegations: "And from the time of taking possession of said property, as aforesaid, they, Kellogg & Co., were and remained in the actual and exclusive possession of the same up to and until the time the goods, chattels, and property hereinafter mentioned and described were unlawfully taken from them by the said defendants, as hereinafter set forth. That afterwards, and on or about the 15th day of January, 1887, the said defendants wrongfully, forcibly, and unlawfully seized, took, and carried away the goods, chattels, and property mentioned and described in

the schedule hereto annexed, marked 'Exhibit A,' and made a part hereof, the same being a part and portion of the goods, chattels, and property hereinberore described, and conveyed and mortgaged to said plaintiffs, as hereinbefore alleged, and wrongfully and unlawfully converted and disposed of the same to their own use, and wholly deprived said plaintiffs of the use, possession, and enjoyment of the same. The value of said goods and property so as aforesaid wrongfully taken and converted to their own use by the said defendants, and described in said schedule marked 'Exhibit A,' was, at the time the same were so taken, of the value of $7,000." A consideration of all the authorities, with the exception of those cited from North Carolina, compel the conclusion that, upon the allegations of the petition referred to, and the findings of fact of the trial court, the theory of the defendants below, that they had the better right to the goods seized, cannot be sustained. The judgment of the district court will be affirmed. All the justices concurring.

(3 Colo. App. 374)

FISK v. CATHCART et al. (Court of Appeals of Colorado. June 12, 1893.) DEED-BREACH OF COVENANT-LIEN FOR TAXESREDEMPTION BY GRANTEE OF EQUITY-LIABILITY OF GRANTORS.

The grantor in a trust deed conveyed his equity in the property to defendants, from whom, by successive conveyances, plaintiff deraigned title. All the deeds contained the general covenants against incumbrances of quiet enjoyment and general warranty. While defendants had title, a lien for taxes accrued, but the sale was made while the title was in plaintiff's immediate grantor. One of the conditions of the trust deed obligated the grantor to pay the taxes, authorized the trustee to apply the proceeds of any sale under it to payment of the general incumbrance, and of any liens for taxes, etc. The trust deed being foreclosed, and the property sold, the title thereunder passed by mesne conveyances from the purchaser to plaintiff, and he afterwards redeemed the premises from such tax sale. Held, that defendants were not liable to plaintiff on the covenants of their deed for the amount of such taxes.

Error to district court, Arapahoe county. Action by Archie C. Fisk against Thomas L. Cathcart and Edward A. Reser for a breach of warranty contained in a deed of certain land executed by defendants to plaintiff's grantor. There was a judgment for defendants, and plaintiff brings error. Affirmed.

Rogers, Shafroth & Walling, for plaintiff in error. John P. Brockway, for defendants in error.

BISSELL, P. J. This action is based upon a covenant contained in a deed under which Fisk, the plaintiff in error, claims to have acquired the title to certain real property situate in the city of Denver. In 1883, Edgar D. Parker owned the lands, and on the 10th day of January of that year exe

cuted his deed of trust to John Sidney Brown, as trustee, to secure the payment of $13,000 to Elizabeth S. Iliff within three years of the date of the loan. The importance of these facts, in determining Fisk's right to maintain the action of covenant which he brought, will become apparent when the subsequent title is deraigned. After Parker made this deed, he sold his equity to Cathcart and Reser, and on the 5th of March, 1883, executed to them a deed which contained the general covenants of seisin, against incumbrances, of quiet enjoyment, and general warranty. The last grantees deeded to Montgomery, who transferred to Reser, from whom the title passed to Lina Beecher, and from him to Fisk. The last deed, from Beecher to Fisk, was dated June 3, 1885. All these deeds contained the same covenants which were expressed in the original transfer from Parker to Cathcart and Reser. While the title stood in Cathcart and Reser, it became subject to the taxes of 1884, which were not paid, and in May, 1885, the property was sold by the treasurer of Arapahoe county. This incumbrance or lien for taxes accrued during the time that the last-named grantors held the title, but the sale was made during the time that the title stood in Beecher, and prior to the conveyance to Fisk. This is stated more for the purposes of illustrating the contention of the appellants than because of its exact bearing upon the legal proposition involved. All of these deeds which have been mentioned, except the one from Parker to John Sidney Brown, which was a trust deed, were made subject to that incumbrance and to all of its terms and provisions. One of the conditions of the trust deed obligated the grantor to pay the taxes which might be levied against the property; authorized the trustee to apply the proceeds of any sale that might be had under it to the liquidation of the general incumbrance, and of any liens that might be legitimately tacked on to it, under its stipulations. In December, 1885, Parker and his subsequent grantees defaulted in the conditions of the deed of trust, and the trustee proceeded to fore close it. The regularity of his proceedings is not questioned, and they culminated in a deed from him to Elizabeth Warren. The title thus vested in Mrs. Warren passed by mesne conveyances to one Brummagen, and from him to Fisk, by a deed which was dated the 5th of April, 1887. About a month afterwards, Fisk redeemed the premises from the tax sale, and expended in doing it $595.22, for which he brings this suit against Cathcart and Reser on their cove nant of warranty contained as heretofore stated in their deed to Montgomery of June 14, 1884. Fisk did not recover.

The view which the court takes of the situation of the title removes the necessity to discuss many intricate and difficult questions on which learned authors and emi