given to him in consideration of the purchase price of said land. E. S. Beavers, however, testifies that said note was given in consideration of an incumbrance of $1,500, which he, E. S. Beavers, had placed on said land after it was reconveyed to him. After continuing at length on other matters connected with the case, some of which will be hereafter mentioned, the court proceeds: "On the question of intent to defraud the creditors of E. S. Beavers, I find that the conveyance of the homestead from E. S. Beavers to M. E. Beavers was in trust for the use and benefit of E. S. Beavers, and that the reconveyance was in execution of that trust, and that the $1,500 note does not represent an actual indebtedness from E. S. Beavers to M. E. Beavers." From this language it was assumed that the trial court found that a trust resulted by operation of law from the conveyance of the homestead from the father to the son. A careful examination of the findings of the court and of the evidence in the case convinces us that the court did not so find, but that the court in. fact found that the conveyance from the father to the son was in trust in the strictest sense of the term, and was conveyed to him in confidence on the part of the father that he would reconvey on request; and that the confidence of the father was well founded; and that the son, although under no legal obligation to do so, so far as the evidence in the case discloses, did execute the trust. It is contended that the findings by the trial court are not supported by the evidence. The evidence with reference to the giving of this note is, to say the least, very unsatisfactory. The deed from son to father is dated May 28th; the note is dated May 30th. E. S. Beavers testified that he sold the land to his son. The deed expressed a consideration of $1,000, but he testifies that the son did not give him anything at all for it. As to the giving of the note he was asked: "Question. Was that note given on the same day that this deed was given? Answer. I don't know whether it was or not." The testimony of both father and son with reference to the time and place of the giving of this note was very indefinite. The conveyance of the homestead to the son was immediately followed by the filing of a pre-emption claim by the father on another quarter section of land, and he testifies that he was aware that he could not hold title to the homestead and also make the filing on the pre-emption claim. It was admitted that he proved up on the southwest quarter of section 21 on May 3, 1887, and the reconveyance from his son was on the 28th of that month; so the title to the homestead was vested in Marion E. less than a month more than the time required, and in fact taken to secure title to the other piece of land. We think all these circumstances, when taken together, tended strongly to show that the homestead was conveyed by E. S. Beavers to his son in trust for the grantor, and that the fact that the son reconveyed so soon after the title to the other land had been perfected indicates that such a reconveyance was in execution of that trust. We think the evidence sustains the findings of the court. This, of itself, would be sufficient to require the affirmance of the judgment, but a full and careful examination of the record leaves no doubt in our minds that this case was correctly decided by the district court. The court finds that E. S. Beavers transferred to his son M. E. property as follows: Stock of merchandise, $2,117; book accounts, $143.22; store building, $800; town lots in Palco, $300; with residence, $100; other lots in Palco, $225. That Marion Beavers was married, had a furnished house, a team and buggy. That he had been away attending school at Kansas City. That the father and younger son lived during a portion of the time with Marion and his wife as one family. Marion E. Beavers did not become of age until July 9, 1888, and the alleged sale of the goods was made in the following December. The only property he had aside from what he claims to have earned after he became of age was that derived from his grandparents, which amounted at the time of this transaction to $1,151.25, and such as his father may have given him. The alleged assumption by Marion E. Beavers of the indebtedness of the father to the minor son is hardly sustained by the evidence. With reference to that matter the father testified that he had nothing to do with it; "that it is a matter fixed up between the boys themselves." The mere giving of a note by Marion Beavers to his brother for the amount due him from their father could not operate to relieve the father from his indebtedness to his minor s and the trial court found that this was not a legal assumption on the part of M. E. Beavers, and that it was not made in good faith. Considering that the father was indebted to the amount of $3,000 for the very merchandise, in part at least, in controversy in this case; that he conveyed all the property he had that was of any considerable value to his son; and that the consideration for such conveyance is patched up in such manner as is shown in this case,-we think the conclusion reached by the trial court entirely correct. The rehearing will be granted, and the judgment affirmed. All the justices concurring. (51 Kan, 544) STANDARD IMPLEMENT CO. v. PARLIN & ORENDORFF CO., (two cases.) (Supreme Court of Kansas. June 10, 1893.) CONDITIONAL SALES WHEN TITLE PASSES RIGHTS OF SELLER. 1. "Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered in to the possession of the buyer." Benj. Sales, (Bennett's 6th Ed.) § 320. 2. Where a party obtains from another the possession of personal property, consisting of agricultural implements, wagons, and buggies, under a written contract that he will hold the same in trust for the benefit of and subject to the order of the owner thereof until fully paid for, and that, if any sales are made by him of the property, that he will hold the proceeds, whether in cash, notes, or book accounts, in trust for and subject to the order of the vendor; and, subsequently, without the knowledge or consent of the vendor, he executes and delivers a chattel mortgage upon the property to another creditor, to secure an old and prior indebtedness, and the mortgagee does not pay or loan any money on account of such personal property, and does not give the mortgagor any credit on account of his possession of the same, -held, that such vendor, in a proper action, may reclaim the same from such a mortgagee, if the latter has the possession thereof. (Syllabus by the Court.) Error from district court, Barber county; C. W. Ellis, Judge. Replevin by the Parlin & Orendorff Company against the Standard Implement Company. Plaintiff had judgment, and defendant brings error. Affirmed. The other facts fully appear in the following statement by HORTON, C. J.: On the 15th day of April, 1889, the Parlin & Orendorff Company brought an action in replevin against the Standard Implement Company, L. M. Spencer, A. N. Spencer, and J. N. Eastwood, to recover possession of certain personal property, valued at $2,205.05. The property was recovered under the writ, and delivered to that company. Issue was joined between the plaintiff and the defendant the Standard Implement Company. On the 17th day of April, 1889, the Parlin & Orendorff Company commenced another action in replevin against the same defendants to recover possession of certain other personal property, valued at $153. The property was taken under the writ, and also delivered to that company. Issue was joined with the defendant, the Standard Implement Company. On the 29th day of November, 1889, the two cases were consolidated by agreement of parties, and tried as one action. The actions arose out of the facts connected with the failure of L. M. Spencer, of Kiowa, Barber county. The goods in controversy had been delivered by L. M. Spencer to the Standard Implement Company upon a $3,000 mortgage and a $4,300 mortgage. That company claimed the right of possessior of the goods by reason of their chattel mortgages and the delivery under them. The Parlin & Orendorff Company claimed to be entitled to the possession of these goods, for the reason that they were obtained by Spencer upon written contracts, by the terms of which the title remained in that company. That company also claimed that the chattel mortgages given to the Standard Implement Company were not accepted in good faith, and were fraudulent. The cause was tried to a jury, who returned a general verdict in fa vor of the Parlin & Orendorff Company. Judgment was rendered accordingly. The Standard Implement Company excepted, and brings the case here. Affirmed. R. O. Boggess and Overstreet & Denton, for plaintiff in error. E. Sample and Chester I. Long, for defendant in error. HORTON, C. J., (after stating the facts.) If the contracts under which L. M. Spencer received the goods in dispute from the Parlin & Orendorff Company were conditional sales only, or if, under the contracts, that company could reclaim the goods, then, in any event, the judgment of the trial court must be affirmed. The provision of the contracts referred to reads: "All goods, and the proceeds of all sales of goods, received under this contract, whether the proceeds are in notes, cash, or book accounts, we agree to hold as collateral security, in trust and for the benefit of, and subject to the order of, the Parlin & Orendorff Company, until we have paid in full in cash all our obligations due the Parlin & Orendorff Company." It is held in Hallowell v. Milne, 16 Kan. 65, that when goods are sold at a fixed price to be paid thereafter, and delivery is made upon the express condition that until the price is paid the title is to remain in the vendor, payment is a condition precedent, and, until made, the property is not vested in the purchaser. Sumner v. McFarlin, 15 Kan. 600; Hall v. Draper, 20 Kan. 137; State v. Spencer, 43 Kan. 114, 23 Pac. Rep. 159; Baring v. Galpin, (Conn., 1888,) 18 Atl. Rep. 266; 23 Amer. Law Rev. 1011; Moors v. Kidder, (N. Y. App., 1887,) 12 N. E. Rep. 818; Coggill v. Railroad Co., 3 Gray, 545; Mack v. Story, 57 Conn. 407; Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. Rep. 51; Ballard v. Burgett, 40 N. Y. 314. At the time of the execution of the mortgages by L. M. Spencer to the Standard Implement Company that company did not pay or loan any money to L. M. Spencer on account of the mortgages or the property described therein, as the mortgages were given to secure $4,300 of an old and a prior indebtedness. It does not appear from any of the evidence that the Standard Implement Company gave L. M. Spencer any credit on acsount of the goods obtained from the Parlin & Orendorff Company. Therefore, upon the facts disclosed, we think the Parlin & Orendorff Company were entitled, under the contracts, to reclaim the goods from the Standard Implement Company. State v. Spencer, supra; Benj. Sales, (Bennett's 6th Ed. 1892,) § 320; Baring v. Galpin, supra; Moors v. Kidder, 106 N. Y. 32, 12 N. E. Rep. 818; Sargent v. Metcalf, 5 Gray, 306; Coggill v. Railroad Co., supra. We are referred to Van Duzor v. Allen, 90 Ill. 499, holding that attaching creditors, without notice, are preferred to the original vendor, 118 Atl. Rep. 707. but the decisions of the supreme court of Illinois upon this subject are against the great weight of authority, and the reasoning of that case and other similar Illinois cases is not satisfactory. Benj. Sales, (6th Ed.) 285, 286. The statute of May 25, 1889, for the deposit of contracts for conditional sales in the office of the register of deeds, did not affect the parties. Their rights accrued prior to that statute going into force. Chapter 255, Sess. Laws 1889. The complaint that the court left to the jury the legal effect of the contracts does not avail. While it is the duty of a court to give the construction of written contracts offered in evidence, yet, if the verdict shows that the jury must have placed a correct construction upon it, there can be no reversal for that cause. Insurance Co. v. Curran, 8 Kan. 10; Akin v. Davis, 11 Kan. 580. The judgment of the district court will be affirmed. All the justices concurring. (51 Kan. 632) PARLIN & ORENDORFF CO. v. SPEN- 1. A debtor, even if insolvent, has a right to prefer one creditor over another, and, if such a creditor accepts from his debtor in good faith, and with no fraudulent or wrongful purpose, a chattel mortgage covering his stock of goods, it will be valid, notwithstanding it may deprive another creditor of property with which to pay his debt. 2. The fact that a debtor in failing cir cumstances, without the knowledge of the creditor, executes and sends to a register of deeds a chattel mortgage upon his stock of goods to secure an actual existing indebtedness, thereby preferring the creditor accepting the mortgage over another creditor, does not necessarily or conclusively show that there was a collusive and fraudulent understanding between the debtor and creditor, for the benefit of such creditor, before the execution or filing of the mortgage. 3. It does not necessarily or conclusively follow that there was a collusive and fraudulent understanding or agreement between a preferred creditor and his debtor because the creditor, who has been preferred by his debtor over other creditors by a chattel mortgage upon his stock of goods, soon afterwards permits such debtor, under a written contract as agent, to sell and account for goods in his possession and belonging to the creditor. (Syllabus by the Court.) Error from district court, Barber county; C. W. Ellis, Judge. Action in attachment by the Parlin & Orendorff Company against L. M. Spencer. The Standard Implement Company intervened, claiming the property seized. Plaintiff had judgment, and claimant brings error. Reversed. The other facts fully appear in the following statement by HORTON, C. J.: On the 15th of April, 1889, the Parlin & Orendorff Company commenced their action against L. M. Spencer to recover $2,255.08 upon an account for goods, wares, and merchandise sold and delivered. An order of attachment was issued and levied on April 15, 1889, at 9:25 o'clock P. M. Prior to the. levy L. M. Spencer had executed two mortgages to the Standard Implement Company upon the stock of goods upon which the levy was made. One mortgage was executed on April 13, 1889, but dated April 12, 1889, for $3,000. This was filed for record in the office of the register of deeds on Monday, April 15th, at 7 o'clock A. M. The other mortgage, for $4,300, was dated April 15, 1889, but not filed for record until April 16, 1889, at 7 o'clock A. M. At the time of the levy the sheriff had notice of both chattel mortgages, and the Standard Implement Company claimed the possession of the stock of goods. That company filed its motion to discharge the property from the attachment, upon the ground that prior to the levy it was entitled to the same, and in the actual possession thereof under the chattel mortgages. On the 6th of December, 1889, the motion to discharge the property was heard, but overruled. The court made and filed conclusions of fact and of law. The Standard Implement Company excepted, and brings the case here. R. O. Boggess and Overstreet & Denton, for plaintiff in error. E. Sample and Chester I. Long, for defendant in error. HORTON, C. J., (after stating the facts.) A preliminary question is presented. It is claimed that we cannot consider this case upon its merits, because it is said that all of the testimony is not contained in the record, and Winstead v. Standeford, 21 Kan. 270, is cited as decisive. That case, however, does not control. The case made shows that all the testimony introduced upon the trial is preserved. It is true that the names of the attorneys making the case appear before the acceptance of the service thereof, but the statement concerning the evidence is not referred to incidentally in a mere notice of the attorneys about amendments, as in Winstead v. Standeford, supra. It seems to be admitted that on April 13, 1889, when the mortgage of $3,000 was executed by L. M. Spencer to the Standard Implement Company, Spencer was indebted to that company for more than that amount. This mortgage was filed for record on April 15, 1889, at 7 o'clock A. M. The levy in this case was not made until 9:25 o'clock P. M. of April 15th, several hours after the filing of the chattel mortgage. In the findings or conclusions of the trial court it is stated that, as L. M. Spencer, in disregard of the rights of other creditors, who had treated him fairly and honestly, executed a chattel mortgage to the Standard Implement Company, and forwarded it for filing to the register of deeds, without its knowledge; and that as Spencer was subsequently permitted to have possession and sell a part of the goods claimed by the Standard Implement Company, and in his possession at the time of the execution of the mortgage, it conclusively follows that there must have been a prior understanding between L. M. Spencer and the Standard Implement Company to override the other creditors, and for Spencer to receive some benefit from the chattel mortgage. The trial court did not fix the precise date of this supposed understanding, but found it was prior to the filing of the mortgage. This court has frequently decided that a debtor, even if insolvent, has a right to prefer one creditor over another. Randall v. Shaw, 28 Kan. 422; Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. Rep. 329; Farlin v. Sook, 30 Kan. 401, 1 Pac. Rep. 123. It does not necessarily or conclusively follow that there was any fraudulent collusion between L. M. Spencer and the Standard Implement Company at the time the chattel mortgage of $3,000 was filed, because L. M. Spencer executed voluntarily a chattel mortgage to that company, and sent it to the register of deeds for filing, without its knowledge. Spencer had the right to prefer the Standard Implement Company, if he so desired. We think the trial court placed too much importance upon the act of L. M. Spencer in preferring the claim of the Standard Implement Company. We find, however, no evidence in the record showing any improper understanding between that company and Spencer prior to the execution or filing of the $3,000 mortgage. Nor are we satisfied that. the action of the Standard Implement Company, in permitting, under a written contract, L. M. Spencer, as its agent, after the levies, to sell its property, which had been replevied, necessarily or conclusively shows that there was a fraudulent understanding between the parties before the execution or filing of the mortgage complained of. Frank houser v. Ellett, 22 Kan. 128; Whitson v. Griffis, 39 Kan. 211, 17 Pac. Rep. 801. There were other findings or conclusions made by the trial court, but those referred to are made so prominent that, in view of the evidence presented, we do not think the judgment should stand. Of course, if it was the intention of L. M. Spencer and the Standard Implement Company to overstate the amount of debt secured in the execution of the two mortgages, with the fraudulent intent to hinder, delay, and defraud creditors, then both mortgages would be void. Wallach v. Wylie, 28 Kan. 138; Winstead v. Hulme, 32 Kan. 568, 4 Pac. Rep. 994. But, If it was the intention of the parties to the mortgages only to secure the actual amount of indebtedness, the mortgages, for that amount, may be valid, if accepted in good faith, and with no fraudulent intent. Corbin v. Kincaid, 33 Kan. 649, 7 Pac. Rep. 145; Bush v. Bush, 33 Kan. 557, 6 Pac. Rep. 794; Hughes v. Shull, 33 Kan. 127, 5 Pac. Rep. 414; Allen v. Fuget, 42 Kan. 674, 22 Pac. Rep. 725. It is urged that the trial court committed error in not permitting a change of venue, 1. Where a person, other than the defendant, files a motion to discharge property from the levy of an attachment, upon the ground that he is the owner thereof, or has a special interest therein entitling him to the possession of the same, and it is not alleged in the motion that the affidavit for the attachment is untrue, or that the proceedings are in any way irregular, the burden is upon such person or claimant to prove the allegations of his motion, and the court hearing the same may properly require such claimant to first produce his evidence. 2. Where a person, without the knowledge of the mortgagee, executes and sends by mail, on Saturday, April 13, 1889, a chattel mortgage upon his stock of goods and merchandise to a register of deeds, with direction to "keep inclosed in your possession," and the mortga gee, on the next day, Sunday, April 14th, calls upon the register of deeds outside of his office, and obtains the chattel mortgage, and then accepts the same, and thereupon redelivers the mortgage to the register of deeds, requests him to file it in his office, and pays him his fee therefor, and the register of deeds upon the following morning at 7 o'clock, Monday, April 15th, files the mortgage in his office, such mortgage, as against creditors of the mortgagor and subsequent purchasers, cannot be considered as deposited in the office of the register of deeds until Monday morning, when such register takes the mortgage to his office. 3. A chattel mortgage not deposited in the office of the register of deeds is absolutely void as against an attaching creditor of the mortgagor, where the mortgagee is not in actual possession of the property mortgaged at the time of the levy of the attaching creditor. Paragraph 3903, Gen. St. 1889; Ramsey v. Glenn, 6 Pac. Rep. 265, 33 Kan. 271; Jewell v. Simpson, 16 Pac. Rep. 450, 38 Kan, 362. 4. The evidence in the case examined, and held to be sufficient to sustain the finding made by the district judge in favor of the attaching creditor. (Syllabus by the Court.) Error from district court, Barber county; C. W. Ellis, Judge. Action in attachment by the Parlin & Orendorff Company against L. M. Spencer. The Standard Implement Company intervened, claiming the property seized. Plaintiff had judgment, and claimant brings error. Affirmed. The other facts fully appear in the following statement by HORTON, C. J.: On April 15, 1889, the Parlin & Orendorff Company commenced their action against one L. M. Spen er for a debt of $935.22, and caused an attachment to issue against his property. The order of attachment was delivered to George W. Stevens, sheriff, at 12 o'clock and 15 minutes A. M. of that date, and executed by the sheriff at 4 o'clock and 30 minutes A. M. of the same day, by levying upon a large quantity of merchandise at Kiowa, Barber county, consisting of various kinds of machinery, agricultural implements, buggies, and wagons. On the 14th day of May, 1889, the Standard Implement Company, claiming the property, filed its motion to discharge the same, which came up for hearing on the 28th day of September, 1889, but during the hearing, by leave of court, the motion was withdrawn from the further consideration of the court without prejudice, with leave to refile the same or other motions. Afterwards, on the 22d day of October, 1889, the Standard Implement Company filed its motion to discharge the attached property, which motion was duly verified, and set forth that prior to and at the time of levying the writ of attachment it was the absolute owner of a part of the goods levied upon, and had a special ownership in the balance of the property by virtue of two chattel mortgages. On November 26, 1889, on leave of court, Parlin & Orendorff filed a general denial to the Standard Implement Company's motion, and on the same day, on motion of the Standard Implement Company, the verification to the Parlin & Oren dorff Company's answer was stri ken out, no leave having been granted to verify. On the same day, November 26, 1889, the same being a regular judicial day of the November term, 1889, of said court, this cause came on for hearing upon the Standard Implement Company's motion. Parlin & Orendorff demanded a jury, which was con sented to by the Standard Implement Com pany, and thereupon a jury was impaneled and sworn to try the issues, at which time the court ruled that the burden of proof was upon the Standard Implement Company, to which ruling of court the Standard Implement Company excepted at the time, whereupon the cause proceeded to trial, and evidence was introduced by affidavits, record and oral testimony, and the trial proceeded from day to day until all the evidence offered and allowed by the court had been introduced. On the 4th day of Decem ber, 1889, the jury returned a verdict finding generally for the Parlin & Orendorff Compa ny. On the same day the Standard Imple ment Company filed its motion to vacate and set aside the verdict of the jury, and to render judgment in favor of the Standard Implement Company, discharging and dissolving the attachment, and releasing to them all the property attached in said cause, and especially the property as shown by Exhibit B to the sheriff's return; and during the argument of said motion the court asked the attorneys for the Standard Implement Company whether they desired the court to pass upon all questions of fact, independent of the findings of the jury, and the attorneys informed the court that they so requested. Thereupon the court passed upon the questions of fact, independent of the findings of the jury, and upon the merits of the motion and the merits of the case, in lependent of the findings of the jury, and in so do`ng considered the evidence introduced by the Standard Implement Company in support of their motion, and by the Parlin & Orendorff Company against the motion, and overruled the Standard Implement Company's motion, and sustained the attachment so far as the Standard Implement Company was concerned, to which ruling of the court the Stan 'ard Implement Company excepted at the time. On the 5th day of December, 1889, the Stardard Implement Company filed their motion for a new trial, which motion was by the court overruled, and judgment rendered by the court overruling the Standard Implement Company's motion, and granting julgment in favor of the Parlin & Orendorff Company against the Standard Implement Company for the costs of the proceedings. On December 7, 1889, the court rendered judgment in favor of the Parlin & Orendorff Company against the defendant L. M. Spencer, for the amount claimed in plaintiff's petition, and sustaining the attachment proceedings against the defendant L. M. Spencer. The Standard Implement Company excepted to the rulings and judgment of the court, and brings the case here. R. O. Boggess and Overstreet & Denton, for plaintiff in error. E. Sample and Chester I. Long, for defendant in error. HORTON, C. J., (after stating the facts.) It is contended that the trial court erred in ruling that the burden of proof was upon the Standard Implement Company upon the hearing of its motion to discharge the property from the levy of the attachment. It was not claimed that the attachment should have been discharged because the affidavit was untrue, or that the proceedings were irregular. The Standard Implement Company claimed part of the property attached as the absolute owner thereof, and also claimed the balance of the property under two chattel mortgages. Upon such a motion the burden rested with the Standard Implement Company, the claimant of the property, and it was properly required by the court to first produce its evidence. After the parties had had a trial, with their consent, before the court and a jury, and a verdict had been rendered in favor of the Parlin & Orendorff Company, the Standard Implement Company requested the court to pass upon the motion, independent of the verdict. This was done by the court. The motion to discharge the property was overruled. Therefore, as the case is now presented, we need not examine the questions raised concerning the instructions given to the jury. |