
    A. Sumner v. C. R. Cook and others.
    July Term, 1873.
    1. Judgments: Modification: Replevin. Upon a verdict for defendant,. in a replevin suit in which the property has been delivered to the plaintiff, a judgment should be entered for the return of the property; and if, through tire mistake or omission of the clerk, it is entered simply for costs, the court may on motion modify it.
    2.-: Grounds of Motion. If such a modification of a judgment is made, and the record fails to disclose the grounds of the motion, or the cause of the error in entering the judgment, it will be presumed that the facts brought the case within the terms of the statute.
    3. Evidence: Declaration. To make a declaration of one from whom a party obtains title to property admissible in evidence against the latter, it must have been made during the time the interest in the property was vested in the person making the declaration.
    Error from Franklin district court.
    Eeplevin, brought by Sumner, to recover the possession of “one American organ,” a musical instrument, which plaintiff claimed as general owner. The property was replevied and delivered to the plaintiff. The defendants, C. E. Cook and H. E. Tucker, alleged ownership in themselves, and they demanded a return of the property. At the trial in the district court, at the March term, 1873, the jury found generally “for the defendants.” Judgment on the verdict.
    
      W. H. Clark, for plaintiff in error.
    The verdict was as follows: “We, the jury, find for the defendants.” Jud0,nent was then entered by the court against plaintiff for costs. A motion for a new trial was filed by plaintiff. Afterwards a motion was filed by the defendants to modify judgment. Motion to modify judgment sustained, and motion for a new trial overruled. The verdict is contrary to law. The jury did not assess the amount of recovery, (Code, § 288,) and the court should *have required such a finding by the jury before they were discharged. The verdict is not responsive to the issues. The jury did not say in their verdict who was entitled to the possession of the property.
    The judgment should have been in the alternative, for a return of the property, or the value thereof in case no return could be had. Flail v. Jenness, 6 Kan. *365; Ward v. Masterson, 10 Kan. *77.
    Wester had no title and could convey none to defendants. The contract between him and Sumner was in law only a lease. That he had the right to purchase makes no difference. The title to the organ is in Sumner until there is a compliance with the condition precedent — the payment in full of the purchase money; and Wester till then has no power to convey or mortgage; and if he undertake to sell or mortgage, and puts the organ into the hands of third persons by writing purporting to be a sale, mortgage, or pledge, such third persons can acquire no valid title as against Sumner, and this, although they may be wholly ignorant of any condition attached to the sale, or contract between Sumner and Wester. Selch v. Jones, 28 Ind. 255; Hart v. Carpenter, 24 Conn. 427; Sewall v. Henry, 9 Ala. 25; Fawcett v. Adams, 32 111. 411; Higgins v. Hannibal & St. J. B. Co., 36 Mo. 419; Stewart v. Levy, 36 Cal. 161; McFarland v. Farmer, 42 N. H. 386; Smith v. Foster, 18 Yt. 182; Marston v. Baldwin, 17 Mass. 606; Story, Sales, § 113; Yates v. People, 6 Johns. 437; Ballard v. Burgett, 40 N. Y. 321; Allen v. Delano, 55 Me. 113.
    
      Welsh & Benson, for defendants in error.
    There was no error in sustaining the motion to modify judgment. Code, § 569. The jury having found a general verdict in favor of the defendants, it was their right to have a judgment upon that verdict for the return of the property. Kayser v. Bauer, 5 Kan. *212.
    The defendants had no knowledge of the claim of Sumner. The agreement between Sumner and Wester amounts simply to a chattel mortgage by Wester, and it was not recorded. Cook and Tucker having had neither actual nor constructive notice of the claim of Sumner, and having purchased of the party in possession, must be protected. The agreement as to them was void. Gen. St. p. 584, e. 68, § 9.
   *Brewer, J.

Two questions are in this case. The action in the district court was one of replevin. The property had been delivered to the plaintiff. The verdict was for the defendants. The judgment entered was that the defendants recover their costs. At the same term, on motion of defendants, the judgment was modified so as to include a return of the property. Upon the verdict the defendants were entitled .to such a judgment. Kayser v. Bauer, 5 Kan. *211. A failure of the jury to find the value did not invalidate the verdict, or prevent a judgment for the return. Marix v. Franke, 9 Kan. *132. The court had the power upon motion to modify the judgment. Code, §§ 568, 569. The grounds for the modification are not disclosed in the motion nor the record, and we must therefore presume them sufficient. How the error in the judgment happened we are not informed, and must therefore presume it was from a mistake or omission of the clerk, which the court had power to correct by motion. Both parties appeared, and were heard by counsel on the motion. No advantage was therefore taken, and no ■error is apparent in the ruling.

The other question arises on the overruling of a motion for a new trial. The motion was on the ground that the verdict was against the evidence, and contrary to law. The whole testimony is before us. From this it appears that defendants had possession of the property at the commencement of the suit; that in or after August, 1872, they obtained it for value, from one John Wester, without notice of any prior claim. As against this, which was prima facie evideuce of title, the plaintiff offered a contract signed by plaintiff and John Wester, and dated November 4, 1871, which purported to-be a lease by plaintiff to Wester, with the privilege of purchase, but reserving the title and the right to resume possession. Other than this instrument, there was no testimony tending to show that *plaintiff ever had any possession or ownership of the property, or that Wester ever had possession before the middle of August, 1872, — nothing to show that Wester got possession from plaintiff, or had ever paid him or anybody else anything. This agreement was the sole evidence of possession or title in the plaintiff. We do not think the court erred in overruling the motion for a new trial. It is unnecessary to determine the character and effect of such an instrument, or what would be the rights of the parties to it, because, as against these defendants, it furnishes no proof that plaintiff ever held possession or title, or transferred either to Wester. It was admissible only as a declaration by the vendor of defendants, qualifying his title.. Such a declaration, to become evidence, must have been made by that vendor while' holding possession. A declaration before he received, as well as one after he parted with, his interest, is inadmissible. The defendants’ rights connot be affected by any declaration of Wester made long prior to his recognized possession or title to the property. Pocock v. Billing, 2 Bing. 269; 1 Phil. Ev. 314; Plant v. McEwen, 4 Conn. 544; Burton v. Scott, 3 Rand. 399; 2 Smith, Lead. Cas. 391. Such a declaration if made while the grantor or vendor is in possession, is not necessarily conclusive. It does not cut off investigation, or prevent a verdict. It is rejected altogether in regard to personal property in New York, and everywhere as respects negotiable paper.

The judgment of the district court wül be affirmed.

(All the justices concurring.)  