
    Augustus J. Wolfley v. Noble H. Rising and others.
    January Term, 1874.
    1. Chattel Mortgage: Rights of Mortgagee to Possession. In the absence of stipulations to the contrary the mortgagee of personal property has, by statute in this state, the right of possession, and it is immaterial what may be the form of mortgage used, providing there be in it no stipulations as to tlie right of possession.
    2. Principal and Agent: Contract: Unnamed Principal. It is competent to show by parol that one of the parties to a written contract concerning personal property, though executing it as apparently a principal, was really, to the knowledge of both parties, acting as the agent of another, and that such unnamed principal was bound by the contract. [Nutt v. Humphrey, 32 Kan. 100; S. C. 3 Pac. Rep. 787. j
    
      3. Replevin: Interest of Plaintiff: Judgment. Where a chattel mortgagee brings replevin to recover the possession of the mortgaged property, and the defendant, by giving bond, retains possession, and the jury finds the value of the mortgaged property to be greater than the mortgage debt and interest, the judgment should be for the recovery of the property, or the debt and interest, and not for the recovery of the value of the property. [Converse v. Salford, 17 Kan. 18; Winstead v. Hulme, 32 Kan. 574; S. C. 4 Pac. Eep. 994.]
    
    4. Record: Irrelevant Matter. Irrelevant matter incorporated into the transcript and forming no part of the record will be stricken from the record at the costs of the plaintiff in error.
    Error from Nemaha district court.
    Replevin, brought by Rising & Son. The facts, and the mortgage under which Rising & Son claimed the oxen in controversy, are fully stated in the report of this case, when first here. 8 Kan. *297, *300. This court sent the case back for a new trial, and such trial was had at the April term, 1873, of the district court. Yerdiet and judgment for Rising & Son, and defendant,' Wolfley, brings the case here on error. The facts upon which a motion to strike out certain irrelevant matter appearing in the record brought to this court was based, are stated in a separate opinion and decision filed by the chief justice, (page *538.)
    
      Joseph Sharpe, for plaintiff in error.
    
      C. W. Johnson, for defendants in error.
    
      
       A judgment for areturn of tbe property, orfor its value in case a return could not be bad, held not erroneous upon tbe facts of tbe case. See Cooper v. Brown. 23 Kan. 582. See, also, Westenberger v. Wheaton, 8 Kan. 121, and note; Town of Leroy v. McConnell, Id. 188, and note; Marix v. Franke, 9 Kan. 91, and note.
    
   *Brewer,J.

This case has been once before in this court. Wolfley v. Rising, 8 Kan. *297. On a second trial in the district court defendants in error again obtained judgment, and now plaintiff in error alleges that the second j udgment is erroneous. The action was one in replevin. The defendants in error claimed title by virtue of a mortgage, the plaintiff in error by virtue of a saló. The mortgage was of personal property; but the form used was that of a real-estate mortgage. The note secured was not due at the date of the commencement of the action. The mortgage is silent as to the possession of the property. Hence, it is claimed that the rule respecting real-estate mortgages obtained, and that the mortgagee had no right of possession until default. The language of the mortgage act is too plain for doubt. Not the form of the instrument, but the nature of the property mortgaged, determines, in the absence of stipulations, the right of possession. Gen. St. 585, c. 68, § 15.

Again, the note secured was signed by and appears on its face to be the individual obligation of E. G. Smith. The mortgage also appears as his personal conveyance. It was undisputed that the property mortgaged belonged to the “Mutual Land, Emigration, and Cooperative Colonization Company” of England. Hence, it is claimed that this mortgage conveyed no title, and that parol testimony was inadmissible to show that the Colonization Company was really bound, and their property transferred, by these instruments. Since the case of Butler v. Kaulback, 8 Kan. *668, it cannot be doubted that parol testimony is admissible to show that one of the parties to a written contract, though executing it as apparently a principal, was really, to the knowledge of both parties, acting as the agent of another, and that such unnamed principal was bound by the contract. It appears from the testimony that E. G. Smith was the managing agent of the colonization company; that he had purchased and *had possession of the property mortgaged; that he was authorized to contract indebtedness for the company, and to mortgage its property ; that the debt for which this note was given was contracted for the company; that the company knew of the contraction of the debt, and the execution of the mortgage, and made no objection to either. The mortgage recites that it is “between E. G. Smith, agent of the English colony, in the county of Nemaha and state of Kansas, of the first part, and N. H. Rising & Son,” etc. It also appears that the mortgagees knew that the property belonged to the company; that Smith was its agent; that the property had been purchased by him and was in his possession; and that their debt was for goods contracted for by Smith and used by the company on its farm in Nemaha county, and charged on their books to E. G. Smith as agent of the said company. Upon this evidence it seems to us the jury was warranted in finding that the company was bound by this mortgage, and that their title was by it conveyed to the mortgagees.

It is said that there was error in refusing some instructions asked. The record does not purport to contain all the instructions given; and it has been settled by repeated decisions of this court that we cannot hold there was error in such case, for the refusal may have been based upon the fact that substantially the same instructions had already been given. Wilson v. Fuller, 9 Kan. *176, and cases cited.

Plaintiffs claimed title by virtue of a purchase of the mortgaged property from Smith prior to the execution of the mortgage. The bona fieles of this purchase was submitted to the jury, and they found against the plaintiff in error. We are not warranted in disturbing their finding on this point, even though our views of the preponderence of the testimony might differ from those of the jury.

One further question remains which deserves notice. Upon the service of the writ of replevin plaintiff in error gave bond and re-' tained the property. The jury found the value of the property to be $500, and the judgment -was that the plaintiffs recover the property, or $500, the value thereof. *It is claimed that there was error in this, as the plaintiffs’ interest was only that of mortgagees, and that when they received the amount of their note and interest they ceased to have any claim to the property. We think this point well taken. It is unnecessary to inquire how this might be independent of statute. We know that there are authorities holding that after condition broken the title to mortgaged personal property becomes absolute in the mortgagee, without redemption. But sections 17, 18, and 19 of our mortgage act, (Gen. St. 585, c. 68,) contemplate a different rule. The first two sections provide for a sale of the mortgaged property, and said section 19 reads that “if, after satisfying the mortgage and costs of sale, there be any surplus remaining, the same shall be paid to any subsequent mortgagee entitled thereto, or to the mortgagor or his assigns.” Under this section it seems to us that all that the defendants in error, the mortgagees, can claim, is, if they do not obtain possession of the property, a judgment for the amount of their note and interest. That amount, at the time of the judgment, was, if we have figured it correctly, $364.04. The case will therefore be remanded to the district court, with instructions to so modify the judgment that it shall be for the recovery of the property, or, in case delivery cannot be had, for the sum of $364.04. The costs in this court will be divided between the parties.

(All the justices concurring.)

Upon a motion to strike out of the transcript certain irrelevant matter, and at the costs of plaintiff in error, the following opinion was filed by

Kingman, C. J.

The counsel for defendants in error move to strike from the record certain portions thereof, as not being properly a part thereof. The motion must be sustained; and those parts of the record herein mentioned will be stricken out, and the costs of copying the same taxed to the plaintiff in error. The case has been to this court before, and the record as brought up ^contains many subpoenas for witnesses, prcecipes for subpoenas, the syllabus and opinion of this court, and the mandate thereof when the case was here before. None of these papers have anything to do with any of the issues in this case, and had nothing to do with the trial in the court below, and are interpolated into the record either to increase the bill of costs, or from ignorance, and must be stricken out at the costs of the plaintiff in error. Attorneys should see to it that the records be not incumbered with papers having no proper place in the record, and if clerks insist in inserting such papers against directions they ought not to be paid.

(All the justices concurring.)  