Silver Lake State Bank v. George

Citations

• 105 Kan. 129
• 181 P. 574
• 1919 Kan. LEXIS 35

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution Sale — Property Sold under Chattel Mortgage to Third Party — Rights of Mortgagee. Where a sheriff sold chattels under an execution, and a third party had a mortgage on some of the property sold, and that party, before the sale, commenced an action in replevin to recover possession of the mortgaged property, the fact that the sheriff sold the propertynot covered by the mortgage will not. defeat the mortgagee’s right to recover the value of the mortgaged property.</p> <p>2. Note — Secured by Chattel Mortgage — New Note Given — Debt Not Paid — Chattel Mortgage Not Released. A new note is not payment of an old one, where each is evidence of the same debt, and the old note is retained by the payee thereof as security for the new one; and a chattel mortgage given to secure the payment of the debt evidenced by the old note remains as security for the payment of that debt.</p> <p>3. Replevin — Chattel-mortgaged Property — No Fraud Shown. After an examination of the evidence abstracted, this court is unable to say that the trial court committed any error in finding that there was no fraud shown.</p> <p>4. Same — Sale of Chattel-mortgaged Property by Sheriff — Amount Recoverable by Mortgagee. Under the circumstances described in the first paragraph of this syllabus, where it appears that the mortgaged property sold by the sheriff was of greater value than the amount of the mortgagee’s claim, with the interest thereon, and that the property cannot be returned, judgment should be rendered for the full amount of the mortgagee’s claim with the agreed rate of interest; but the judgment itself should bear interest at the rate of six per cent per annum.</p>