
    John S. Gardner, et al. v. The Anthony National Bank.
    No. 9202.
    Levy on Personalty — requires such actual and exclusive possession as property will permit. It is a requirement of a valid levy upon personalty that the officer take such actual and exclusive possession as the nature of the property will permit. Constructive possession of a species of property admitting of actual and exclusive possession, is insufficient as against a chattel mortgagee of such property who obtains such possession without committing a trespass or a fraud.
    
      Error from Harper District Court.
    
    
      Hon. 6?. W. McKay, Judge.
    
    Affirmed.
    Opinion Filed January 8, 1897.
    
      Stanley & Vermilion, for plaintiffs in error.
    
      T. A. Noftzger, for defendant in error ; Geo. B. Crooker, •of Counsel.
   Martin, C. J.

The original action was replevin brought by the Bank against Gardner, who was Sheriff, .and Privett, who. was Deputy Sheriff, to recover 125 head of cattle, 67 head of calves, 97 head of hogs, 19 brood mares, 1 stallion, 2-|- sets of harness and 2 lumber wagons. A trial was had before the Court and .a jury at January term, 1892, resulting in a judgment in favor of the plaintiff below.

Prior to February 1, 1889, this property belonged to F. B. & S. S. Singer, who held the same on two large tracts of land four or five miles apart, one being known as the Silver Creek place and the other as the Home Farm of S. S. Singer. On November 21, 1888, H. W. Lewis, president and trustee of the Kansas National Bank, commenced an action against S. S. Singer, F. B. Singer and others on a promissory note to recover the sum of $4,3 30 and interest, and on January 30, 1889, he caused an order of attachment to be issued in the action to the Sheriff, and it was-placed in the hands of Privett, the Deputy Sheriff, for service. He testifies in substance that on Friday, February 1, he went to Silver Creek first and found 130 head of cattle which he levied on there, no person being present; but Joseph Hutchinson testifies that he was in charge of those cattle at the time, and that-he did not see Privett there. Privett further says that-he then went from Silver Creek to the Singer farm and inquired for S. S. Singer, who was absent;. that-he then levied on other property, consisting of cattle, hogs, horses, mules, etc., which was in certain lots and in a barn ; that he had a conversation with Ned Griffin,, an employe of Singer, in which Griffin agreed that he-would take charge of and hold the property until the former could go and summon appraisers ; that Singer-came home and said he was sorry a levy had been made, as he could arrange the matter; and it was-then agreed that Privett should return on Monday to-appraise the property, unless there was some further-understanding about it. Privett then left the place, and did nothing further until the following Monday.

F. B. & S. S. Singer were largely indebted to the-Anthony National Bank ; and on or about January 15, 1889, they executed to F. D. Denlinger, its cashier, a-chattel mortgage, to secure certain promissory notes, amounting in all to $7,385, this mortgage being dated. January 1, 1889. Late in the afternoon of February 1, and after the conversation between Privett and S.S. Singer, the latter went to the Bank and told the-managing vice president, H. M. Denlinger, that he wanted to secure the Bank by chattel mortgage, the-indebtedness having largely increased since the giving of the first mortgage. What occurred there is a matter of some, controversy, but it resulted in the giving of another chattel mortgage amounting to $4,-'988.15 on said property, and also upon certain corn, oats, hay and millet on the place, and S. S. Singer •executed a lease of his farm to the Bank. These papers were dated February 1, although the transaction was probably not completed until after midnight. Both mortgages were filed for record on the afternoon of February 2. T. A. Noftzger was one of the attorneys for the Bank who assisted in the transaction ; and very early the next morning he started to S. S. Singer’s farm, where he arrived about 7 o’clock a. m., having the lease and the mortgages, or copies thereof, in his possession. He told Singer that he wanted possession of all the mortgaged property at once, and to this Singer assented. Noftzger then employed three or four men on and about the place to feed and take care of the.live stock, and engaged board for them and for himself. On Saturday afternoon, at Singer’s request, Hutchinson brought the cattle from the Silver Creek place and turned them in with the others on the S. S. Singer farm. Noftzger and the men employed by him remained at or about the farm in charge of the property until Monday, when Privett came and demanded it, saying that he had levied upon it on the preceding Friday; but Noftzger told him that he was in possession of the property for the Bank, and would retain it unless forced to give it up. Privett then left, saying that he would return and take it. Thereupon Noftzger had t.he gates to the lots and the doors to the barn nailed up ; but on the next day Privett returned with about 20 men, broke open the gates and doors and took away the property; at least all that was replevied in this action.

No evidence was given tending to impeach the good faith of the indebtedness of F. B. & S. S. Singer either to the Bank or to Lewis. As to the latter, the first mortgage given to the Bank was not valid on February 1, because there is no pretense that he had any notice of it and it had not then been filed for record. It will therefore be seen that the decisive question in the case is, whether the proceedings of the deputy sheriff were or were not sufficient to inaugurate and continue a lien in force when Noftzger took possession for the Bank. There is no doubt that Noftzger’s acts and doings were sufficient to constitute a possession good against the Singers, and, so far as appears, as against all the world except the Deputy Sheriff. If the latter then had a lien, the possession of Noftzger for the Bank was subject to it. There was some evidence on the trial and on the motion for a new trial tending to show that, when S. S. Singer went to the Bank on Friday afternoon, he told the vice-president that Privett had been at his place with an order of attachment, a copy of which Singer had with him and exhibited to the officers of the Bank; and it is shown in the testimony in behalf of the Bank that they knew Privett had been at Singer’s farm seeking to collect a claim. One creditor may, however, legally obtain a preference over another by the consent of the debtor. S. S. Singer may have acted treacherously with Privett, but the Bank sustained no relation either to the Deputy Sheriff or to Lewis preventing it from deriving an advantage even by Singer’s bad faith to them. In taking possession under the mortgages, the Bank assumed the risk of any prior lien or incumbrance, whether it had knowledge of the same or not. There is an intimation that the Bank may have obtained possession through connivance-with Griffin, but there is no evidence of this; and perhaps Griffin considered that he had no duty to-perform in relation to the property after the conversation between Privett and S. S. Singer; for we understand from the evidence that he did nothing toward taking charge of or caring for the property and that he asserted no authority whatever over the same. Indeed, he had no means of caring for the property until the succeeding Monday, even had he been allowed to occupy the farm, for he had no feed and no help,, and, so far as appears, no way of obtaining them. Neither did the deputy sheriff go on Friday prepared to take charge of the property upon which he formally levied. Though he had obtained a lease of the farm,, he could not have kept the live stock for a single day without help and feed, yet no provision was made for-either notwithstanding he seems to have contemplated doing nothing further until Monday. On Saturday morning, when Noftzger reached the Singer farm,, certainly nobody but the Singers had the actual dominion and control over the property. Privett as deputy sheriff had not the actual custody and possession either by himself or Griffin. He had adopted no-measure whereby he might actually hold the property subject to the order of the Court. It is a requirement-of a valid levy upon personalty that the officer shall take such actual and exclusive possession as the nature of the property will permit. Privett had, at-most, only constructive possession of a species of' property which admitted of actual and exclusive possession,-such as was in fact obtained by Noftzger for-the Bank. Like possession might have been obtained by Privett by driving and taking the property away and caring for it afterward ; or perhaps by taking charge of it on the Singer farm and thereafter controlling it so that nobody could have obtained possession without committing a trespass or a fraud; but it is impossible to sustain the validity of this levy without disregarding principles heretofore recognized by this Court. Lyeth v. Griffis, 44 Kan. 159; Throop v. Maiden, 52 id. 258. See also 1 Shinn, Att. & Gar., §§ 244, 247, 256, 257 and 264.

Several questions are raised as to the testimony, the instructions of the Court and the refusal to give instructions requested by the defendants below. We have examined them all, but everything hinges upon the validity of the levy by the Deputy Sheriff, and as to this the jury was properly instructed, and there was a general verdict without findings upon any particular question of fact. We do not find that any material error was committed in the trial of the cause.

The judgment will be affirmed.

All the Justices concurring.  