Bartlett v. Ridgley National Bank

Citations

• 70 Kan. 126
• 78 P. 414
• 1904 Kan. LEXIS 15

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Chattel Mortgage — Affidavit Held Sufficient. In an action of replevin by a mortgagee to recover the possession of the mortgaged chattels an affidavit alleging ownership thereof in the plaintiff is sufficient where the chattel mortgage contains no stipulation retaining title in the mortgagor; especially so where the verified petition in the action sets out the exact nature of the claim.</p> <p>2. -Answer States No Defense — Demand Not a Condition Precedent. In an action in replevin by the mortgagee to recover the mortgaged property the petition averred that the debt secured by the mortgage was past due and remained unpaid, and that the provision of the mortgage was that the mortgagee was entitled to the possession of the property upon default in payment. The answer, besides a general denial, substantially admitted the indebtedness, the giving of the mortgage, and the default, but charged that after the plaintiff had obtained possession of the property under the order of delivery issued in the action it was improperly and improvidently disposed of by him at a price much below its value, and prayed for a return of the property, or, if a return could not be had, a judgment for its value. Held, that the entire pleading, taken together, stated no defense to plaintiff’s recovery; that having asked the return of the property the defendant occupied the position of one asserting his right of possession at the time of the commencement of the action, and, hence, no demand need be shown; that the sole issue in a replevin action, in the first instance, is the right of possession of the replevied property at the beginning of the action, and, hence, the plaintiff’s wrong-doing in relation to the property after the commencement of the action could not be litigated therein.</p>