
    J. W. McCartney v. Mary J. Wilson.
    1. Chattel Mortgaoe, Given by Person Legally in Oustody of an Officer, to Secure his Discharge, is Void. Mrs. W. was a prosecuting witness in a certain criminal proceeding, and was adjudged by the court to pay the costs of the prosecution and stand committed to the county jail until the same were paid. Afterward, and while in the custody of an officer who had full authority to commit her to jail, as ordered hy the court, she gave to such officer a note and a chattel mortgage for the amount of said costs, and in consideration therefor the officer released her. The mortgage was given to the officer and to the state jointly, to secure said note, and was given for no other consideration than said release. The officer did not agree to pay said costs, except possibly by implication he agreed to pay them as he collected the same from W. on said note, or as he made the same from the sale of said mortgaged property; and said costs have never been paid: Held, That W. was not released from paying said costs, nor legally released from said imprisonment; that said mortgage was without sufficient consideration, and is therefore void.
    2. --Replevin will Die, to Recover Goods held by am, Officer under a Void Mortgage. The mortgage contained a stipulation that the mortgagor should retain the mortgaged property in her possesssion until default, unless the property should depreciate in value, etc. Afterward the officer took said property into his possession because of a supposed depreciation in value, and the mortgagor then replevied the same from the officer: Held, That the mortgagor is not estopped from claiming that said mortgage is void, and she may maintain said action 'of replevin for the recovery Of the property upon the ground that said mortgage is void.
    
      Error from Sedgwiolc District Court.
    
    Replevin, brought by Mrs. Wilson, to recover possession of a span of horses, alleged to have been wrongfully taken and wrongfully detained by McCartney. All necessary facts are stated in the opinion of the court. Trial at the March Term 1875 of the district court. Judgment for plaintiff, and McCartney brings the case here on error..
    
      Adams & English, for plaintiff in error.
    
      Kirhpatrieh & Harris, for defendant in error.
   The opinion of the court was delivered by

Valentine, J.:

This was an action of replevin brought by Mary J. Wilson against J. W. McCartney. The property in controversy belonged to Mrs. Wilson, but McCartney claimed to be entitled to the possession thereof by virtue of a certain chattel mortgage executed by Mrs. Wilson to himself to secure the payment of a certain promissory.note. The mortgage stipulated among other things, that the property should remain in the possession of Mrs. Wilson until default should be made in the payment of said note, unless Mrs. Wilson should sell or offer to sell the same, or remove or offer to remove the same from Butler county, or unless the same should depreciate in value, or unless the security should in some other manner become impaired, in which case McCartney was authorized to take the property into his possession and sell the same for the purpose of paying said note. Afterward McCartney did take the property into his possession. The record states such taking, and the grounds therefor, as-follows: “He deemed the property therein described inadequate security by reason of the great depreciation in value, and therefore he took possession of the same in order to advertise and sell the same and apply the proceeds in payment of said note, and before the sale thereof this suit was brought in replevin by the plaintiff to recover possession of said property.” Now, there is nothing in the record which shows that said property had in fact depreciated in value, or that anything else had in fact transpired to give to McCart-' ney the right to the possession of the property; and for this reason alone the judgment of the court below, which gave the property to the plaintiff, should be affirmed. But .the plaintiff seems to have prosecuted her action in the court below solely upon the ground that the said mortgage was void. We shall therefore examine the case from that standpoint.

It seems that some time prior to the execution of said note and mortgage, the plaintiff was the prosecuting witness in a certain criminal proceeding, in which proceeding she was adjudged to pay the costs, and to stand committed to the county jail until the same were paid. The defendant was the officer who had her in charge, and instead of executing the judgment of the court, as he should have done, he took said note and mortgage, and in consideration thereof released his prisoner. The note was executed by Mrs. Wilson to herself, indorsed in blank, and delivered to McCartney. The mortgage was executed by Mrs. Wilson to the state of Kansas and to the defendant McCartney jointly, and delivered to McCartney. Now we think that such a mortgage is void. There is certainly no statute that authorizes the execution of such a mortgage. Mrs. Wilson might have given a bond under § 18 of the act regulating procedure before justices of the peace in misdemeanors; (Gen. Stat. 881, 882, §18.) But there is certainly no statute authorizing such a transaction as the one which brought this mortgage into existence. ■ Said mortgage was void because there was no sufficient legal consideration therefor. Mrs. Wilson was never released, or attempted to be released, from paying said costs. She was never legally released from her liability to suffer said imprisonment in the county jail, to which she was adjudged. She might legally have been arrested and committed to the county jail the very next minute after she executed said note and mortgage, and after she was released by McCartney. McCartney never paid said costs, or offered to pay them', and they never have been paid. The record in fact does not show that he ever even agreed to pay them, and we suppose he never did agree to pay them except possibly by implication he agreed to pay them as he collected the same from Mrs. Wilson on the note, or as he made the amount from the sale of said -mortgaged property. It will therefore be noticed that ■this case differs widely from the case of Converse v. Safford, recently decided by this court, (ante, p. 15.) The note and mortgage were sustained in that case upon the ground' that they were given substantially for a loan of money.

It is claimed however that Mrs. Wilson is estopped from setting up any claim that said mortgage is void; and we suppose that this claim is made upon the ground, principally, that if any wrong was done she is in pari delicto. This would probably be so if the note and mortgage had been executed, the property delivered, and Mrs. Wilson released, all at the same time, as parts and portions of one and the same transaction. But this .was not so. It does not appear that the property was ever delivered to McCartney. On the contrary, the record shows that “he took possession of the same” long after the note and mortgage were executed, long after Mrs Wilson was released, and probably against her will, for she (shortly after it was taken) replevied it. We suppose it will be remembered that all presumptions, from silence on the part of the record, must be construed against the plaintiff in error. Error is never presumed, but must be affirmatively shown. The presumptions are all in favor of the correctness of the decision of the court..

The judgment of the district court will be affirmed.

All the Justices concurring.  