Barker v. Kelderhouse

• Decision Date: 01 January 1863
• Citation: 8 Minn. 178
• Parties: DAVID BARKER vs. GEORGE W. KELDERHOUSE.
• Court: Minnesota Supreme Court

Page 178

8 Minn. 178

DAVID BARKER vs. GEORGE W. KELDERHOUSE.

Supreme Court of Minnesota.

Appeal from judgment of district court, Winona County.

Points and authorities for appellant: —

1. Kelderhouse never had such an interest in the property in question as to bring it within the provisions of subdivision 10 of sec. 100, p. 569, of the Pub. Stat. The mortgage did not create any lien upon it within the meaning of the statute, but only continued what Barker already had.

2. To give the statute the effect claimed would be to make it a party to fraud. Such is not the spirit of the statute. Grimes v. Bryne, 2 Minn. [103]; 3 Minn. [121]; 3 Cow. 89; 15 Johns. 21; 21 Wend. 21.

3. But this claim cannot be sustained for the further reason, that the property in question is specially excepted from the operation of the statute.

4. It is incumbent on the respondent to show that this was all the property used by him for household purposes, and that he had not other property to the amount prescribed, to-wit, $250. 5 Denio, 119; 1 Greenl. Ev. §§ 721, 78; Davis v. Prosser, 32 Barb. 290.

5. Section 100 was repealed by act of August 12, 1858. Pub. Stat. 569.

Berry & Waterman, for appellant.

Lewis & Simpson, for respondent.

ATWATER, J.

This was an action brought by the appellant Barker to recover certain personal property of the defendant Kilderhouse. The complaint alleges that the plaintiff sold to defendant all the household furniture in the Waverly House in Winona, on the twenty-seventh day of April, 1861; that on the same day defendant executed a chattel mortgage to plaintiff, on the said property, to secure the payment of two promissory notes for $200 each; that default had been made in the payment of one of said notes; that plaintiff had demanded possession of the property, which was refused, and claiming judgment for the delivery of the property, and damages.

The answer admits the execution of the mortgage, but alleges that the defendant at that time was a householder and married man, whose wife was then living with him; that the said property was by statute exempt from execution; and that the chattel mortgage, or paper purporting to be a chattel mortgage, was not executed by the wife of defendant, and therefore gave the plaintiff no title to the said property. The answer also sets up that the notes were given as part consideration of the purchase money of said property, and makes certain allegations tending to show fraud on the part of the plaintiff in the sale of the property. There was a reply denying the new matter set up in the answer.

A jury trial was waived and the cause submitted to the Hon. Thomas Wilson, district judge, who found the following as matters of fact, viz.: First, that the defendant, on the twenty-ninth day of April, A. D. 1861, executed and delivered to the plaintiff the mortgage mentioned and described in the complaint in this action. Second, that the property covered by said mortgage was household furniture, as stated in the complaint, and more particularly described in the schedule introduced by the plaintiff at the trial of this cause and marked schedule "B." Third, that it was a part of the agreement on the purchase of said property by the defendant of the plaintiff, that the defendant should execute said mortgage to the plaintiff, to secure part of the purchase money of said property. Fourth, that at the time of said purchase, said defendant was a married man, and ever since the time of said purchase, defendant with his family has resided in a house in the City of Winona, called the Waverly House, and ever since the aforesaid purchase of said property, he has kept said house as a hotel for the accommodation of travellers. Fifth, that said property was purchased by defendant of plaintiff, to be used in said Waverly House, kept by defendant as a hotel, and used as a residence and dwelling-house for himself and family, as aforesaid. Sixth, that the wife of said defendant did not join with her husband in the execution of said mortgage. Seventh, that said property was not, at the commencement of this action, worth over $250. Eighth, that the plaintiff was not guilty of fraud in the sale of said property to defendant. As a conclusion of law, the court found, that the said chattel mortgage of the aforementioned property was and is void, not...